John Gresser and Janice Gresser, Individually and as natural guardians of Elizabeth Gresser and Rebekah Gresser v. The Dow Chemical Company, Inc., Dowelanco n/k/a Dow Agrosciences LLC

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ROGER L. PARDIECK LONNIE D. JOHNSON
KAREN M. DAVIS PATRICIA S. BERNENS
SARAH MILLER HYATT Clendening Johnson & Bohrer, P.C.
The Pardieck Law Firm Bloomington, Indiana
Seymour, Indiana

MICHAEL J. STAPLETON JOSEPH G. EATON
ELIZABETH B. SEARLE DEAN T. BARNHARD
Ball, Eggleston P.C. PAUL L. JEFFERSON
Lafayette, Indiana Barnes & Thornburg, LLP
Indianapolis, Indiana

IN THE Apr 30 2013, 9:15 am

COURT OF APPEALS OF INDIANA

JOHN GRESSER and JANICE GRESSER, )
Individually and as parents and natural guardians
)
of ELIZABETH GRESSER and )
REBEKAH GRESSER, )
)
Appellants/Plaintiffs, )
)
vs. ) No. 79A02-1111-CT-1014
)
THE DOW CHEMICAL COMPANY, INC. )
DOWELANCO n/k/a DOW AGROSCIENCES )
LLC, and RELIABLE EXTERMINATORS, INC., )
)
Appellees/Defendants. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Robert M. Hall, Special Judge
Cause No. 79D01-0403-CT-25

April 30, 2013
 OPINION – FOR PUBLICATION

PYLE, Judge

STATEMENT OF THE CASE

John and Janice Gresser, individually, and as parents and natural guardians of

Elizabeth and Rebekah Gresser (collectively, “the Gressers”), filed a product liability

action against The Dow Chemical Company, Inc., and DowElanco n/k/a Dow

Agrosciences LLC (collectively, “Dow”) and a negligence action against Reliable

Exterminators, Inc. (“Reliable”).

Dow responded to the Gressers’ suit by filing several motions for summary

judgment and motions to strike. Reliable also filed or joined in the summary judgment

motions. The Gressers appeal the trial court’s grant of some of these summary judgment

motions, while Dow and Reliable cross-appeal the trial court’s denial of other summary

judgment motions. In addition, Reliable cross appeals the trial court’s denial of its

motion to exclude and/or strike depositions, affidavits, and other evidence proposed by

the Gressers’ expert witnesses. The issues delineated below are dispositive.

We affirm in part, reverse in part, and remand for further proceedings.1

ISSUES

1
Oral argument was held on February 20, 2013. We thank counsel for their able representation.

2
 1. Whether summary judgment for Dow is warranted under the Indiana
Product Liability Act (“IPLA”).

2. Whether the trial court erred in denying Reliable’s motion to exclude
or strike the evidence proposed by the Gressers’ causation experts.

3. Whether the trial court erred in denying Reliable’s motion for
summary judgment on the Gressers’ negligence claim.

4. Whether the trial court erred in denying Reliable’s summary
judgment motion on the issue of punitive damages.

5. Whether the trial court erred in determining that this case is
preempted by federal law.

FACTS AND PROCEDURAL HISTORY

On January 31, 2000, Reliable’s owner, Robert Hanstra (“Hanstra”), performed a

pre-treatment inspection of a house owned by James Galloway and marketed by REMAX

Realty (“REMAX”). Hanstra found evidence of what he believed to be termite activity,

and he recommended that the house be treated for termites. Reliable subsequently

entered into a contract with REMAX that required Reliable to apply a termiticide to the

house. The contract was in connection with the sale of the house to New Chauncey

Housing (“New Chauncey”).

On February 11, 2000, Reliable employee Dave Neal treated the house by

applying a termiticide, Dow’s Dursban TC, to get rid of wood destroying insects. At all

times, Dursban TC was registered with the Environmental Protection Agency (“EPA”)

according to the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”).
3
 Thirteen months after Reliable’s application of Dursban TC, the Gressers

purchased the house, even though they detected a very strong odor in the house. On

May 10, 2001, two months after the purchase, the Gressers moved into the house, which

still emanated a very strong odor.

After moving into the house, the Gressers reportedly experienced continual health

problems, including unremitting flu-like symptoms, colds, excessive secretions,

dizziness, fatigue, and other physical problems. The Gressers’ daughters reportedly

developed irritability, behavior problems, and learning difficulties. In June of 2002, the

Gressers moved out of the house because they feared that something in the house was

causing their various illnesses.

On March 17, 2004, the Gressers filed product liability claims against Dow and

negligence claims against Reliable. Their product liability claims are based on Dow’s

alleged failure to (1) use reasonable care to instruct about the use of the product; (2) warn

about its dangers; and (3) properly test and design the product. The Gressers’ claims

against Reliable are based on their belief that Reliable negligently (1) chose to apply a

termiticide where none was necessary; (2) selected Dursban TC instead of a safer

product; (3) misapplied Dursban TC; and/or (4) failed to provide a warning to future

occupants of the house.

Dow filed separate motions for summary judgment pertaining to the validity of the

Gressers’ failure to warn claims and various other issues pursuant to the Gressers’ claims

4
under IPLA. Dow also filed a motion for summary judgment alleging that the Gressers’

failure to warn claims were preempted by federal law, specifically FIFRA and EPA

regulations. Dow further filed a motion for summary judgment alleging that the

Gressers’ claim for punitive damages was unsubstantiated. In addition, Dow filed

various motions to strike designated evidence, including expert witness affidavits.

The trial court granted Dow’s summary judgment motion pertaining to the validity

of the Gressers’ failure to warn claims under IPLA. The trial court also granted Dow’s

motion for summary judgment on the issue of federal preemption. The trial court further

granted Dow’s summary judgment motion pertaining to the Gressers’ claim for punitive

damages. The trial court denied all other Dow motions without substantive comment,

including a motion by both Dow and Reliable to exclude two of the Gressers’ expert

witnesses.

Reliable filed a motion for summary judgment and joined with Dow on other

motions. The trial court denied Reliable’s motion for summary judgment and other

motions. However, the trial court granted summary judgment in favor of Reliable on the

federal preemption issue.2

Additional facts will be disclosed below as necessary.

DISCUSSION AND DECISION

2
A trial court “may grant summary judgment for any other party upon the issues raised by the motion
although no motion for summary judgment is filed by such party.” Indiana Trial Rule 56(B).

5
 Summary judgment is appropriate if there is no genuine issue of material fact and

a party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883

N.E.2d 1203, 1206 (Ind. Ct. App. 2008), trans. denied. A genuine issue of material fact

exists “‘where facts concerning an issue which would dispose of the litigation are in

dispute or where the undisputed facts are capable of supporting conflicting inferences on

such an issue.’” Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind. Ct. App. 2012) (quoting

Scott v. Bodor, 571 N.E.2d 313, 318 (Ind. Ct. App. 1991)). When reviewing entry of

summary judgment, we stand in the shoes of the trial court. Koppin v. Strode, 761

N.E.2d 455, 460 (Ind. Ct. App. 2002), trans. denied.

The moving party bears the burden of showing that there are no genuine issues of

material fact and that it is entitled to judgment as a matter of law. Boston v. GYN, Ltd.,

785 N.E.2d 1187, 1190 (Ind. Ct. App. 2003), trans. denied. We review only the

designated evidentiary material in the record, construing that evidence liberally in favor

of the nonmoving party so as not to deny that party its day in court. Myers v. Irving

Materials, 780 N.E.2d 1226, 1228 (Ind. Ct. App. 2003). However, once the movant has

carried its initial burden of going forward under Indiana Trial Rule 56(C), the nonmovant

must come forward with sufficient evidence demonstrating the existence of genuine

factual issues that should be resolved at trial. Clary v. Dibble, 903 N.E.2d 1032, 1038

(Ind. Ct. App. 2009), trans. denied. If the nonmovant fails to meet its burden, and the

law is with the movant, summary judgment should be granted. Id.

6
 Our standard of review is not altered by the fact that the parties made cross-

motions for summary judgment. Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind.

Ct. App. 2011). Instead, we consider each motion separately to determine whether the

moving party is entitled to judgment as a matter of law. Id.

1. Summary Judgment on the Gressers’ IPLA Claims

As noted above, the trial court granted Dow’s summary judgment motion

regarding the validity of the Gresser failure to warn claims under IPLA. However, the

trial court denied Dow’s summary judgment motion based upon the Gressers’ failure to

satisfy IPLA requirements for proving that a product was defective. The Gressers appeal

the grant of the former motion, and Dow cross appeals the denial of the latter motion.

The motions are inextricably linked, and we base our decision upon the evidence

designated by both parties and upon the dictates of federal and state law.

IPLA governs all actions that are (1) brought by a user or consumer; (2) against a

manufacturer or seller; and (3) for physical harm caused by the product, regardless of the

substantive legal theory or theories upon which the action is brought. Ind. Code § 34-20-

1-1. Liability under IPLA is imposed “upon sellers of a product in a defective condition

that is unreasonably dangerous to any user or consumer.” Warriner v. DC Marshall Jeep,

962 N.E.2d 1263, 1267 (Ind. Ct. App. 2012), trans. denied. A product is defective if, at

the time it is conveyed by the seller to another party, it is in a condition that is not

contemplated by reasonable persons among those expected users or consumers of the

7
product and that will be unreasonably dangerous to the expected user or consumer when

used in reasonably expectable ways of handling of consumption. Ind. Code § 34-20-4-1.

The requirement that the product be in a defective condition focuses on the product itself

while the requirement that the product be unreasonably dangerous focuses on the

reasonable expectations of the consumer. Baker v. Heye-America, 799 N.E.2d 1135,

1140 (Ind. Ct. App. 2003), trans. denied. A product may be dangerous in the ordinary

sense but not “unreasonably dangerous” for product liability purposes under IPLA. Id.

Ind. Code § 34-20-5-1 provides a rebuttable presumption that the product which

caused the physical harm is not defective and the manufacturer or seller of the product is

not negligent if, before the sale by the manufacturer, the product “complied with

applicable codes, standards, regulations, or specifications established, adopted,

promulgated, or approved by the United States or by Indiana, or by an agency of the

United States or Indiana.” FIFRA requires that all pesticides sold or distributed in the

United States must first be registered with the EPA. 7 U.S.C. § 136a(a). A FIFRA

registration is a “product-specific license describing the terms and conditions under

which the product can be legally distributed, sold, and used.” Reckitt Benckiser, Inc. v.

EPA, 613 F.3d 1131, 1133 (D.C. Cir. 2010) (citing 7 U.S.C. § 136a(a), (c)-(e)). The EPA

“can only register a pesticide upon determining that ‘it will perform its intended function

without unreasonable adverse effects on the environment’ and that ‘when used in

accordance with widespread and commonly recognized practice it will not generally

8
cause unreasonable adverse effects on the environment.’” Id. (quoting 7 U.S.C. §

136a(c)(5)(C), (D)). FIFRA defines “environment” to include “water, air, land, and all

plants and man and other animals living therein, and the interrelationships which exist

among these.” 7 U.S.C. § 136(j). In registering any pesticide, the EPA must make an

official agency determination that the product does not pose any “unreasonable risk to

man or the environment, taking into account the economic, social, and environmental

costs and benefits of [its] use.” 7 U.S.C. § 136(bb).

As a result, Dow is entitled to the statutory presumption pursuant to Indiana Code

§ 34-20-5-1. Dursban TC’s compliance with FIFRA and Indiana law has a significant

impact under IPLA’s consumer expectation-based product liability regime because the

risk of harm has been evaluated by agencies charged with the duty of monitoring the

effects of Dursban TC. Furthermore, Dursban TC’s labeling and warnings have been

approved by agency experts.

In this case, the undisputed designated evidence establishes that Dursban TC was

registered with the EPA, pursuant to FIFRA (7 U.S.C. § 136-136y) and its implementing

regulations, from February of 1981 to March of 2009. The undisputed evidence also

establishes that at all times relevant in 1999 and prior to and including February of 2000,

that the data submitted by Dow in support of the registration “was in full compliance with

Indiana law.” (Dow’s App. 1463). The designated evidence further establishes that Dow

has always sold Dursban TC with a copy of the current EPA-approved label attached to

9
the containers of the product at the time of sale. Dow has never sold Dursban TC directly

to the general public but instead sold the product to distributors who sold it to applicators.

Indiana Code § 34-20-4-2 provides that a product is defective under IPLA if the

seller fails to (1) properly package or label the product to give reasonable warnings of

danger; or (2) give reasonably complete instructions on proper use of the product; when

the seller, by exercising reasonable diligence, could have made such warnings or

instructions available to the user or consumer. Here, the label, warnings, and instructions

were reviewed by agency experts and eventually provided to Reliable, a sophisticated

user.

Despite the lack of evidence showing Dursban TC to be defective pursuant to

Indiana Code § 34-20-4-2, the Gressers claim that their injuries would not have occurred

absent Reliable’s negligence. However, Indiana Code § 34-20-4-3 provides that a

product is not defective if “it is safe for reasonably expectable handling and

consumption.” The combination of federal and state approval of the product, combined

with the nature of the Gressers’ claim against Reliable, constitutes undisputed evidence

that Dursban TC was not defectively produced by Dow.

In response, the Gressers also argue that designated evidence pertaining to pre-

2000 settlements between Dow and the EPA rebuts the statutory presumption; however,

this evidence does not establish that Dursban TC was ever unregistered. Indeed, as a part

of a settlement between Dow and EPA, the Dursban TC label was amended to contain

10
stronger warnings than past labels. Therefore, the Gressers arguably benefitted from the

pre-2000 conflict. Furthermore, the Gressers’ evidence does not prove a product defect.

See In re Trasylol Products Liability Litigation, 763 F.Supp.2d 1312, 1329-30 (S.D. Fla.

2010) (holding that evidence or testimony pertaining to conflicts with a federal agency is

generally irrelevant to a plaintiff’s state-law claims and thus inadmissible); Webster v.

Pacesetter, Inc., 259 F.Supp.2d 27, 37 (D.C. 2003) (holding that a plaintiff cannot create

an issue of fact regarding a state-law tort claim through evidence about the defendant’s

communications with a federal agency).

Because it is undisputed that (1) Dow complied with federal regulations and state

law label requirements; and (2) the Gressers presented no admissible evidence to rebut

the presumption that Dursban TC is not defective, Dow is entitled to judgment as a matter

of law. The trial court erred in denying Dow’s motion for summary judgment under

IPLA on the Gressers’ defective design claim. Therefore, the Gressers’ failure to warn

and defective design theories under IPLA are ineffectual.

2. Motion to Strike or Exclude Evidence Proposed by the Gressers’ Expert
Witnesses

On cross appeal, Reliable contends that the trial court erred in not granting its

motion to strike and/or exclude the designated depositions, studies, and affidavits of the

Gressers’ medical causation experts, Dr. J. Routt Reigart (“Reigart”) and Dr. William

Meggs (“Meggs”). Reliable argues that Reigart’s and Meggs’ opinions are inadmissible

on the issue of causation because the opinions meet neither the requirements of Indiana
11
Evidence Rule 702 (stating that scientific testimony is admissible “only if the court is

satisfied that the scientific principles upon which the expert testimony rests are reliable”)

nor Indiana Evidence Rule 703 (stating that experts “may testify to opinions based on

inadmissible evidence, provided that it is the type reasonably relied upon by experts in

the field”).

The decision to admit or exclude proffered expert testimony is entrusted to the

sound discretion of the trial court. PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705,

738 (Ind. Ct. App. 2004), trans. denied. We will reverse the trial court only if its

decision is clearly against the logic and effect of the facts and circumstances. Id.

Specific causation in a toxic tort case is “usually” supported by evidence of the

plaintiffs’ exposure “to a particular causative agent and the dose or amounts thereof, the

temporal relationship between the exposure and the occurrence of the [injuries], scientific

conclusions as to the amount of exposure necessary to cause the disease, and the

elimination of other possible causes or explanations for the plaintiff[s’] [injuries].”

Aurand v. Norfolk S. Ry., Co., 802 F.Supp.2d 950, 959 (N.D. Ind. 2011). Indiana courts

do not require proof of each element in every case but will exclude expert testimony

where none of the elements is shown. Outlaw v. Erbrich Products Co., 777 N.E.2d 14,

29 (Ind. Ct. App. 2002), trans. denied. In particular, we have held that when an expert

witness testifies in a chemical exposure case “that the exposure has caused a particular

condition because the plaintiff was exposed and later experienced symptoms, without

12
having analyzed the level, concentration or duration of the exposure to the chemicals in

question, and without sufficiently accounting for the possibility of alternative causes,” the

expert’s opinion is insufficient to establish causation. Id. (emphasis added). “An

expert’s opinion is insufficient to establish causation when it is based only upon a

temporal relationship between an event and a subsequent medical condition.” Id.

(emphasis added).

In May v. Ashley F. Ward, Inc., 952 N.E.2d 224 (Ind. Ct. App. 2011), we

distinguished Outlaw in affirming a trial court’s denial of a manufacturer’s motion to

exclude an expert causation witness in a case where the plaintiff claimed that heavy

metals caused him to contract sinus cancer. We emphasized that the expert knew from an

examination of the “Material Safety Data Sheets” which heavy metals the plaintiff had

been daily exposed to at work. Id. at 231, n.7. We further emphasized that the expert

“explained the rarity of this type of cancer, its link to heavy metal exposure, and the fact

that he ruled out several other potential causes.” Id. We noted that in Outlaw, “the

chemicals at issue were unknown [and] . . . the expert had not sufficiently accounted for

the possibility of alternative causes. Because the expert’s opinion was based primarily on

the existence of a temporal relationship, we found that it amounted to subjective belief

and unsupported speculation.” Id.

In Hottinger v. Trugreen Corp., 665 N.E.2d 593, 597 (Ind. Ct. App. 1996)

(partially overruled on other grounds in Dow Chemical Co. v. Ebling, 753 N.E.2d 633,

13
636 (Ind. 2001)), trans. denied, we held that expert testimony was admissible based on

temporal proximity of exposure and the onset of symptoms; a medical history; a medical

examination; diagnostic evaluations; and the expert’s education and experience.

Similarly, in Femco, Inc. v. Colman, 651 N.E.2d 790, 794 (Ind. Ct. App. 1995), we

affirmed the trial court’s refusal to exclude a physician’s affidavit where the distributor

and manufacturer of a chemical argued that the affidavit contained no expert

toxicological or neurological evidence of causation and that it lacked any foundation for

the conclusion that exposure to the chemical was “the culprit behind [the plaintiff’s]

troubles and was therefore conclusory.” We held that the affidavit was admissible

because it established that the affiant (1) examined and treated the plaintiff for her injury;

(2) knew of the chemical ingredients and their potential effects; and (3) diagnosed the

chemical as the cause of the plaintiff’s injury. Id. In so holding, we noted that the affiant

had read the chemical’s “Material Safety Data Sheet,” which included a list of possible

toxic effects of the chemical that paralleled those of the plaintiff. Id.

In Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 104 (Ind. Ct.

App. 2005), trans. denied, we held that the trial court properly admitted an expert’s

testimony where the expert obtained a history of chemical exposure by reviewing the

plaintiff’s medical records and the depositions of co-workers, reviewed relevant medical

literature, and conducted a differential diagnosis. Id. at 104. We reviewed Hottinger and

14
Femco and concluded that neither required specific evidence of dose or exposure level.

Id. at 105.

Kannankeril v. Terminix Intern., Inc., 128 F.3d 802 (3rd Cir. 1997) is instructive.

In Kannankeril, as in the instant case, the plaintiffs alleged they suffered injuries from

exposure to chloropyrifos (a key ingredient in Dursban TC). The plaintiffs’ expert based

his opinion of causation on the temporal relationship between the exposure and the

symptoms, the nature of the symptoms, and a “differential diagnosis” attempting to rule

out other causes. Id. at 807-09. The court rejected the district court’s finding that the

expert had no knowledge of the plaintiffs’ degree of exposure, stating that the expert “had

sufficient knowledge of exposure” from his review of application records showing when,

where, and how much pesticide was applied. Id. at 808. The court noted that “the toxic

effects of organophosphates [such as chlorpyrifos] are well recognized by the scientific

community” and concluded that the expert’s opinion contained a factual basis and

supporting scientific theory. Id. at 809.

Here, the trial court denied the motion to strike and/or exclude the evidence

presented by Reigart and Meggs after it reviewed a plethora of information and theories

from both parties. Reigart’s assessment addressed duration of the exposure,

circumstances consistent with peer-reviewed literature, and exposure data from multiple

sources. He reviewed medical records, social worker assessments, occupational therapist

notes, neuropsychological evaluations, and examinations of the Gressers’ daughters. He

15
also conducted a differential diagnosis to rule out other causes. Meggs opined that the

duration of the exposure resulted in acute symptoms, and he explained that in 95 percent

of cases the precise amount of exposure cannot be determined. He examined medical,

family, environmental, and social history pertaining to a time period before and after the

exposure, and he conducted physical examinations. Meggs also performed a differential

diagnosis of acute symptoms and chronic illnesses for each family member.

In this case, the Gressers’ medical causation experts’ testimony was based on

much more than the temporal relationship between the event and the subsequent

development of medical conditions. Therefore, our review of the record and the parties’

arguments reveals that the trial court did not abuse its discretion in denying Reliable’s

motion to exclude the testimony of Reigart and Meggs.

3. Reliable’s Motion on Causation and Failure to Warn

As stated above, the Gressers’ claims against Reliable are based on their belief that

Reliable negligently (1) chose to apply Dursban TC when no application was necessary;

(2) selected Dursban TC instead of a safer product; (3) misapplied Dursban TC; and/or

(4) failed to provide a warning to the Gressers as foreseeable occupants of the house

where the application was made. On cross appeal, Reliable contends that the trial court

erred in not granting its motion for summary judgment on the Gressers’ claims of

negligent application and/or negligent failure to warn because Reliable owed no duty to

the Gressers.

16
 In order to recover on a negligence claim, plaintiffs must establish three elements:

“(1) a duty on the part of the defendant to conform its conduct to a standard of care

arising from its relationship to the plaintiffs; (2) the defendant’s failure to conform its

conduct to the requisite standard of care required by the relationship; and (3) injury to the

plaintiffs proximately caused by the defendant’s breach of its duty.” Holt v. Quality

Motor Sales, Inc., 776 N.E.2d 361, 365 (quoting Webb v. Jarvis, 575 N.E.2d 992, 995

(Ind. 1991)), trans. denied. Summary judgment is rarely appropriate in negligence

actions; however, issues of duty are questions of law for the court and may be appropriate

for disposition by summary judgment. Id. Duty exists where reasonable persons would

recognize it and agree that it exists. Bradley v. Brown, 852 F.Supp. 690, 695 (N.D. Ind.

2002). The following three factors must be balanced in considering whether to impose a

duty at common law: (1) the relationship between the parties; (2) the reasonable

foreseeability of harm to the persons injured; and (3) public policy concerns. Holt, 776

N.E.2d at 366 (quoting Webb, 575 N.E.2d at 995).

Where, as here, the parties do not argue, and we do not detect, any special

relationship between the parties that would give rise to a duty of care, the Court’s focus is

“on whether the type of harm actually inflicted was reasonably foreseeable.” See

Bradley, 852 F.Supp. at 695. Reliable maintains that foreseeability and public policy

considerations militate against a finding of a duty to warn the Gressers. Reliable argues

that it could not foresee the identity of the future buyers of the house and that it was

17
impracticable as a matter of public policy to expect it to provide warnings to such

unidentified buyers. However, Reliable knew that the house it treated with a highly toxic

product was for sale, and it knew or should have known that the house was going to be

purchased and occupied by people who could be injured by the product. Therefore, it

was foreseeable that the future occupants, the Gressers, could be injured by

misapplication of the product. Furthermore, public policy mandates that an applicator of

such toxic materials conform its conduct to avoid injury to unsuspecting future

occupants. Id.

Balancing the three factors originally listed in Webb, we conclude that Reliable

had a duty to warn the Gressers. The trial court did not err in denying Reliable’s

summary judgment motion on this issue.

4. Reliable’s Motion on Punitive Damages

On cross-appeal, Reliable contends that the trial court erred in denying its motion

for summary judgment on the issue of punitive damages. Reliable contends that the

Gressers’ allegations, even if true, are insufficient to establish that an award of punitive

damages is warranted.

Whether a party may recover punitive damages is usually a question of fact for the

fact finder to decide; however, it may be decided as a matter of law. Williams v.

Younginer, 851 N.E.2d 351, 358 (Ind. Ct. App. 2006), trans. denied. Furthermore, proof

that a tort was committed does not necessarily establish the right to punitive damages. Id.

18
Punitive damages may be awarded only if there is clear and convincing evidence that the

defendant acted with malice, fraud, gross negligence, or oppressiveness which was not

the result of a mistake of fact or law, honest error or judgment, overzealousness, mere

negligence, or other human failing. Id.

Here, the Gressers designated evidence which they contend is sufficient to create a

genuine issue of material fact on the issue of punitive damages. The Gressers point to

evidence indicating that Reliable ignored numerous label warnings when it (1) applied

Dursban TC where there was no evidence of active infestation; (2) did not properly vent

the house; (3) failed to seal obvious cracks, and (4) did not turn off the furnace during

application of the termiticide. Reliable disputes this evidence.

As a result, there is a genuine issue of material fact as to whether Reliable

committed gross negligence in ignoring the label warnings, thereby allowing toxic

materials to circulate throughout the house whenever the furnace was turned on. In

addition, the conflicting contentions create a genuine issue of material fact as to whether

Reliable was grossly negligent in not warning the Gresssers that Dursban TC had been

determined by the EPA to be particularly harmful to children and to be the source of

neurological damage. The designated evidence also might allow a jury to determine

whether Reliable knew that the EPA was removing Dursban TC from the market.

Knowing the particular dangers of Dursban TC, Reliable chose to apply it when at least

ten other liquid termiticides were available. Furthermore, Reliable chose not to inform

19
the Gressers that the persistent odor in the house could be related to an off-target

application; instead, it offered to vent the house upon payment by the Gressers.3

Our review of the designated evidence discloses that there is sufficient evidence to

create a fact question pertaining to the Gressers’ punitive damage claim. Accordingly,

the trial court did not err in denying Reliable’s motion.

5. Federal Preemption

As we note above, the trial court granted summary judgment for both Dow and

Reliable on the issue of federal preemption. Specifically, the trial 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 contend that the trial court erred in

granting summary judgment on this issue.

Preemption is based on the Supremacy Clause of the United States Constitution,

which provides that federal law “shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. The United States Supreme

Court has established two principles to guide preemption analysis: (1) in determining
3
Reliable notes that it did not learn of the odor until the Gressers informed them of the odor after they
had moved from the house. Reliable argues that because the Gressers never reoccupied the house, “there
is no basis whatsoever for a claim of duty and negligence premised on this [knowledge]: any harm to the
[Gressers] due to toxic exposure, or lack of warning, had already occurred at this time.” (Reliable’s Br. at
39 n.3). As we held in Wohlwend v. Edwards, 796 N.E.2d 781, 785 (Ind. Ct. App. 2003), we are
“unwilling to say that, in a case involving punitive damages, post-incident acts could never be relevant to
the issue of punitive damages in conjunction with the incident giving rise to the plaintiff’s claim.” Here,
Reliable’s post-application failure to warn the Gressers of the odor’s significance could be determined by
the fact finder to be consistent with a pattern of gross negligence.

20
whether preemption is proper, the purpose of Congress is the ultimate touchstone; and (2)

in all preemption cases, particularly those in which Congress has legislated, the historic

powers of the states are not to be superseded. Wyeth v. Levine, 555 U.S. 555, 565 (2009)

(citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

Courts have recognized three types of preemption: express preemption; field

preemption; and conflict preemption. Express preemption occurs when Congress

includes a clause in a statute that explicitly removes specific powers from the states. See

CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 664 (1993). In the absence of express

preemption, field preemption occurs when federal law encompasses so much of an area

of law that courts can infer that Congress left no opportunity for state law to supplement

federal law. English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990). The third type of

preemption, which is discussed in PLIVA, is conflict preemption. 131 S.Ct. 2577.

Conflict preemption occurs when federal law impliedly preempts state law because it is

impossible for a private party to comply with both state and federal law. Wyeth, 555 U.S.

at 563. To prevail on this defense, a defendant must demonstrate that compliance with

both federal and state law is a “physical impossibility.” Id. at 573. Impossibility

preemption is a “demanding defense, and the mere possibility of impossibility is not

enough to successfully argue for preemption.” Id.

Here, we have already determined that the Gressers have not established their

product liability claims against Dow under IPLA. Dow is not required to defend against

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the claims, and there is no viable conflict issue under PLIVA. Thus, the trial court’s grant

of summary judgment was improvidently granted.

Furthermore, the Gressers’ failure to warn claim against Reliable does not render

compliance with both state and federal law impossible. As our Supreme Court held in

Dow Chemical Co. v. Ebling, 753 N.E.2d 633, 640 (Ind. 2001), “[t]he use of state tort law

to further the dissemination of label information to persons at risk clearly facilitates

rather than frustrates the objectives of FIFRA and does not burden [an applicator’s]

compliance with FIFRA.” Again, the trial court’s grant of summary judgment on this

issue was improper.

CONCLUSION

The trial court correctly granted Dow’s summary judgment motion on the

Gressers’ failure to warn claims under IPLA. However, the trial court erred in denying

Dow’s related summary judgment motion on the Gressers’ failure to satisfy IPLA

requirements. In addition, the trial court improvidently granted Dow’s summary

judgment motion pertaining to federal preemption.

The trial court correctly denied Reliable’s motion to exclude the Gressers’ expert

witnesses. The trial court also correctly denied Reliable’s summary judgment motions

pertaining to the Gressers’ negligence claims and to the possibility of a punitive damage

award. The trial court erred by granting summary judgment in favor of Reliable on the

issue of federal preemption.

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 Affirmed in part, reversed in part, and remanded for further proceedings.

FRIEDLANDER, J., and BROWN, J., concur.

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