August 17, 2022

Volume XII, Number 229

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Indiana Court Presumes Lack of Defect Due to Manufacturer’s Compliance with Federal Pesticide Law

Compliance with federal pesticide law and state labeling requirements entitles a pesticide registrant to a presumption that the product is not defective under Indiana law, according to the Indiana Court of Appeals. See Gresser v. Dow Chemical Co., No. 79A02-1111-CT-1014 (Ind. Ct. App. Apr. 30, 2013), available at www.bdlaw.com/assets/attachments/Gresser.pdf.  

Plaintiffs, a homeowner family, filed product liability claims against Dow and negligence claims against an extermination company alleging that a Dow termiticide, with which the exterminator had treated Plaintiffs’ home 13 months prior to their purchase, had caused Plaintiffs health problems.Gresser, slip op. at 3-4. The trial court granted summary judgment to Dow on Plaintiffs’ failure to warn claim under Indiana Product Liability Act (“IPLA”), but denied Dow’s summary judgment motion based on Plaintiffs’ failure to satisfy IPLA requirements for proving that a product was defective. Id. at 7.

The appellate court found that Plaintiffs’ failure to warn and defective product claims were inextricably linked and thus considered these claims together. Id. The appellate court found persuasive a provision of Indiana law that provides compliance with all applicable state and federal law creates a rebuttable presumption that the product is not defective and the manufacturer or seller of the product is not negligent. Id. at 8. Because the Dow termiticide used was properly registered under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) and in compliance with state law labeling requirements, the court found Dow was entitled to a statutory presumption against liability and granted summary judgment to Dow on the product liability claims. Id. at 8-11.

As for the extermination company, the court allowed the suit to move forward on all issues, finding, among other grounds, that applying state tort law to further the dissemination of pesticide label information to persons at risk “facilitates rather than frustrates the objectives of FIFRA.” Id. at 22 (citation omitted).

© 2022 Beveridge & Diamond PC National Law Review, Volume III, Number 198
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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

212-702 5417
Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

212-702-5415
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