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).