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While a Monroe County couple convinced the Court of Appeals of Indiana that a trial court misapplied the state’s product-liability statute in their case, that ruling still didn’t win them any relief for the allegedly defective decks at their home.
In 2020, Gene and Gladys DeVane filed a complaint against Arch Wood Protection Inc., Koppers Performance Chemicals Inc. and Venator Materials PLC alleging their house in Monroe County, which was built in 1991, had decks made of wood treated with an arsenic pesticide. According to the complaint, such treatment for residential wood stopped in 2003.
The couple’s complaint alleged the defendants used “deceptive” labeling, so they had only recently discovered there is arsenic in their decks, making them “an imminent threat” to their health. Further, the DeVanes argued the decks are “uninsurable” and must be listed as a “defect” if they wanted to sell the house.
The couple requested equitable remediation, including replacement of the decks — which they estimated would cost $40,000 — and proper disposal of the arsenic-treated wood.
But the Monroe Circuit Court dismissed the complaint with prejudice, finding the decks fell under Indiana’s Product Liability Act, which provides that no such action can be commenced more than 10 years after the product is delivered to the initial user or consumer.
On appeal, the couple argued their action didn’t fall under the act because it was not one for product liability, as the applicable statute governs only actions for “physical harm” to a person or to property other than the product itself. The DeVanes weren’t claiming any existing or past physical harm, they argued — only the risk of future physical harm.
While the Court of Appeals agreed the DeVanes’ complaint didn’t fall under PLA, judges still affirmed the dismissal after concluding the couple failed to establish that “equitable remediation” is a valid cause of action, rather than simply a type of remedy.
“Contrary to the Defendants’ claim, the DeVanes have not alleged that the arsenic in their decks ‘has caused’ physical harm beyond the decks themselves,” Judge Nancy Vaidik wrote. “At most, they have alleged that the arsenic might cause physical harm to person or property in the future. And the other ‘damage’ mentioned by the Defendants — ‘economic damages in the form of the alleged uninsurability of the decks’ and ‘the purported loss in value of the home’—is not ‘physical harm.’
“… That said, we may affirm a 12(B)(6) dismissal if it is sustainable on any basis in the record,” Vaidik continued. “… At oral argument, when asked what legal authority supports a claim or cause of action for ‘equitable remediation,’ the DeVanes’ attorney offered only vague references to the law of equity. … A Westlaw search of all state and federal cases for the phrase ‘equitable remediation’ yields just nineteen results. None of the cases involved a claim anything like the one here, and the general takeaway is that ‘equitable remediation’ is — as the name suggests — a type of remedy, not a cause of action.”
“… The DeVanes have not established that ‘equitable remediation’ is a valid cause of action, nor have they identified any other statutory or common-law cause of action that might be viable here,” Vaidik concluded. “On this alternative ground, we affirm the dismissal of their amended complaint.”
The case is Gene DeVane and Gladys DeVane, Husband and Wife v. Arch Wood Protection, Inc., a Lonza Company, Osmose, Inc., n/k/a Koppers Performance Chemicals Inc., Chemical Specialties, Inc., n/k/a Venator Materials PLC, 22A-CT-233.
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