The Court of Appeals of Indiana is hitting the road again this week as a panel prepares to hear oral arguments at Notre Dame Law School in a case concerning the use of arsenic to treat a home’s exterior.
Judges Nancy Vaidik, Melissa May and Elizabeth Tavitas will travel to the South Bend law school on Friday to hear the case of Gene DeVane and Gladys DeVane v. Arch Wood Protections, Inc., et al., 22A-CT-233.
According to the appellate court, appellants Gene and Gladys DeVane filed an action for “equitable remediation” in 2020 against three companies that had manufactured arsenic used to treat wooden decks at their home, which was built in 1991. The DeVanes argued they had “recently discovered” that the wood was treated with arsenic, making the decks “inherently dangerous.”
The DeVanes also argued the decks were uninsurable and must be listed as a defect if they ever want to sell the home. They asked the Monroe Circuit Court for an order requiring the defendants — Arch Wood Protection Inc., Koppers Performance Chemicals Inc. and Venator Materials PLC — to replace the decks.
But the defendants moved to dismiss, arguing the action is subject to Indiana’s Product Liability Act, which includes a 10-year statute of repose. The trial court agreed and dismissed the case, and the DeVanes now appeal.
Specifically, the DeVanes are arguing on appeal that their action is not one for product liability, so it is not subject to the statute of repose. They claim the Product Liability Act governs only actions for “physical harm” to a person or property other than the product itself, but they are only claiming risk of future physical harm.
Further, the DeVanes are arguing on appeal that even if they did raise an action for product liability, the defendants fraudulently concealed the dangerous nature of their product and are thus equitably estopped from relying on the statute of repose.
The arguments will begin at 1:30 p.m. Friday at 1170 Eck Hall of Law on the Notre Dame campus. The arguments will not be livestreamed but will be available online within a week of the hearing.