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The Dow Chemical Company v2/3/2000
FOR PUBLICATION
STATEMENT OF THE CASE
Todd and Cynthia Ebling, individually, as husband and wife, and as parents and natural guardians of Christina Ebling and Alex Ebling, (collectively, "the Eblings") filed various state tort claims against The Dow Chemical Company, DowElanco n/k/a Dow AgroSciences LLC, Eli Lilly & Company, Rofan Services, Inc. and Epco, Inc. (collectively, "DowElanco"), Louisville Chemical Company ("LCC"), Affordable Pest Control ("Affordable"), and others. The Eblings generally allege that Christina and Alex developed seizure disorders and other health conditions as a result of their exposure to pesticides -- Dursban 2E and Dursban L.O., products manufactured by DowElanco and allegedly applied to the Eblings' apartment by Affordable; and Creal-O, a product formulated by LCC. In this consolidated appeal, DowElanco, LCC and Affordable appeal from the denial of their separate motions for summary judgment.
We affirm in part and reverse in part and remand.
ISSUES
DowElanco, LLC, and Affordable raise numerous issues on appeal, which we consolidate and restate as follows:
I. Whether the Eblings' state law tort claims against DowElanco, LCC, and Affordable are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). II. Whether Affordable is entitled to summary judgment on the Eblings' strict liability and negligence claims brought under the Indiana Product Liability Act on the grounds that the pest control rendered by Affordable involved wholly or predominately the sale of a service rather than a product. III. Whether a genuine issue of material fact exists as to whether Affordable breached a standard of care in applying Dursban in the Ebling apartment. IV. Whether Affordable's application of Dursban constitutes an abnormally dangerous activity warranting the application of strict liability for the resulting harm to the Eblings. V. Whether a genuine issue of material fact exists as to whether Affordable's conduct of applying Dursban in the Ebling apartment gives rise to punitive damages.
FACTS
DowElanco and Dursban Pesticides
DowElanco, now known as Dow AgroSciences LLC, began as a joint venture between defendant Rofan Services, Inc. and Epco, Inc. to develop, manufacture and market agricultural and specialty products. Before October of 1989, Dow developed, manufactured and marketed a group of insecticides under the trademark Dursban. Dursban L.O. and Dursban 2E are two of those insecticides. Dursban 2E and Dursban L.O. were registered with the Environmental Protection Agency (EPA) in 1982 and 1984, respectively. As a part of the registration process, Dow received from the EPA stamped and accepted labels for both insecticides, which were authorized by the EPA for use in and around residential structures, including apartments and apartment complexes. In 1989, the registrations of Dursban 2E and L.O. were transferred to DowElanco.
DowElanco does not sell Dursban 2E or L.O. to the general public. Instead, DowElanco sells Dursban 2E and L.O. products with the EPA-approved labels affixed thereto to professional applicators, distributors and formulators who repackage the products. There is no evidence that DowElanco gave any end-consumers EPA-approved labeling information regarding the dangers of its pesticides or directed any applicators, distributors or formulators to do so.
An active ingredient in Dursban products is chlorpyrifos. In November of 1994, DowElanco voluntarily submitted to the EPA reports of allegations of adverse effects resulting from exposure to pesticide products containing chlorpyrifos as an active ingred
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