ILNews

Summary judgments on federal preemption are reversible error

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The Indiana Court of Appeals has found an exterminator and the insecticide maker should not have been granted summary judgments on the issue of federal preemption.

In John Gresser and Janice Gresser, et al. v. The Dow Chemical Company, Inc; Dowelanco n/k/a Dow Agrosciences LLC; and Reliable Exterminators, Inc., 79A02-1111-CT-1014, the appeals court affirmed in part, reversed in part and remanded for further proceedings.

Among its findings, the COA ruled that the trial court erred by granting summary judgment in favor of Dow Chemical Company and Reliable Exterminators on the issue of federal preemption.

The Gresser family filed product liability claims against Dow and negligence claims against Reliable after they began experiencing an array of health problems. They contend the pesticide made by Dow and used by Reliable to kill termites caused a host of physical and cognitive aliments which forced them to eventually move out of their home.

The lower court determined that the Gressers’ product liability and negligence claims were preempted pursuant to PLIVA, Inc. v. Mensing, 131, S.Ct. 2567 (2011).

The Gressers appealed.

In regards to the federal preemption, the COA ruled that because the Gressers did not establish their product liability claims against Dow under Indiana Product Liability Act, the chemical company is not required to defend against these claims. Consequently there is no viable conflict preemption issue under PLIVA.  

In addition, the Gressers’ claim that Reliable failed to warn does not render compliance with both state and federal law impossible, the COA held. Pointing to Dow Chemical Co. v. Ebling, 753 N.E.2d 633, 640 (Ind. 2001), the court noted the use of state tort law to further disseminate label information facilitates rather than frustrates the objective of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and does not burden an applicator’s compliance with FIFRA.


The COA affirmed summary judgment to Dow on Gressers’ failure to warn claims under IPLA. The court also correctly denied Reliable’s summary judgment motions pertaining to the Gressers’ negligence claims and the possibility of a punitive damage award, the judges ruled.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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