About this Event
1170 Eck Hall of Law Notre Dame, IN 46656
This Traveling Oral Argument will not be webcast live because it will not take place in the Court of Appeals Courtroom. Video of the event will become available within about one week after the hearing. See Oral Arguments Online for video.
Gene and Gladys DeVane own a home built in 1991 with decks constructed of wood treated with arsenic to protect it from termites and other pests. In 2020, they filed an action for “equitable remediation” against three companies that had manufactured arsenic for use in treated wood. The DeVanes claim they “recently discovered” that there is arsenic in the decks and that the arsenic makes the decks “inherently dangerous.” They also allege the decks are uninsurable and must be listed as a defect if they ever try to sell their house. They seek an order requiring the defendants to replace their decks.
The defendants moved to dismiss, arguing the action is one for product liability and is therefore subject to Indiana’s Product Liability Act and its statute of repose, which provides that no product-liability action can be commenced more than ten years after “the delivery of the product to the initial user or consumer.” They contend the DeVanes have labeled the action as one for “equitable remediation” simply in an attempt to avoid the statute of repose. The trial court agreed and dismissed the case.
The DeVanes appeal, arguing their action is not one for product liability and is not subject to the statute of repose because the Product Liability Act governs only actions for “physical harm” to a person or to property other than the product itself and they are not claiming any existing or past physical harm, only the risk of future physical harm. They also assert that, even if their action is one for product liability, the defendants fraudulently concealed the dangerous nature of their product and are therefore equitably estopped from relying on the statute of repose.
The scheduled panelists are Judge Vaidik, Judge May, and Judge Tavitas.