### In the



# United States Court of Appeals

For the Seventh Circuit

No. 12

‐ 3024

S COTT W EIGLE and A PRIL W EIGLE

, Plaintiffs

‐ Appellants

,

v.

SPX C ORPORATION

, Defendant

‐ Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:10

‐ cv

‐ 01400

‐ LJM

‐ MJD

— Larry J. McKinney

, Judge.

No. 12

‐ 3025

J OHN M OORE

, II and C ORINNE M OORE

, Plaintiffs

‐ Appellants

,

v.

SPX C ORPORATION

,

Defendant

‐ Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:11

‐ cv

‐ 00822

‐ LJM

‐ MJD

— Larry J. McKinney

, Judge.2 Nos. 12

‐ 3024 & 12

‐ 3025

A RGUED F EBRUARY 12, 2013

— D ECIDED S EPTEMBER 6, 2013

Before R IPPLE and T INDER

, Circuit Judges

, and Z AGEL

,

District Judge. *

T INDER

, Circuit Judge. This suit under the diversity jurisdic

‐

tion stems from an incident in which a semi

‐ truck trailer fell off

of its support stands and on top of Scott Weigle and John

Moore, the two mechanics who were working on the trailer.

Weigle and Moore each sued SPX Corporation, the designer of

the support stands, asserting claims of inadequate warnings

and defective design under the Indiana Product Liability Act

(IPLA), Ind. Code § 34

‐ 20

‐ 1

‐ 1 et seq

. The district court granted

summary judgment for SPX on all claims, finding that the

warnings were adequate as a matter of law and that, as a

result, the support stands were not defective under Indiana

law. We affirm the district court’s judgments on the

inadequate

‐ warnings claims, but we vacate the judgments on

the defective

‐ design claims and remand for further proceed

‐ ings.

I.Background

A. Accident & Nature of Support Stands

At the time of the underlying incident, Weigle and Moore

were professional mechanics employed by Truckers 24

‐ Hour

* The Honorable James B. Zagel of the Northern District of Illinois, sitting

by designation.Nos. 12

‐ 3024 & 12

‐ 3025 3

Road Service, Inc., in Indianapolis, Indiana. Both had consider

‐

able experience: Weigle had been a mechanic at Truckers since

1997, and Moore had been a mechanic at Truckers since 2001.

On July 31, 2009, Weigle and Moore undertook a job to

rebuild the braking system on a semi

‐ truck trailer. In prepara

‐

tion, Weigle used an airlift to raise the rear portion of the trailer

and then lowered the trailer onto two support stands; the front

of the trailer was supported by the trailer’s built

‐ in dolly legs.

Weigle had already begun working on the trailer when Moore

came over to assist. The trailer somehow moved as both

mechanics were working underneath it, causing the support

stands to tip over and the trailer to come crashing down.

It is undisputed that the two support stands were OTC

Tools 1779A support stands designed by SPX. These support

stands consist of a conical base, an extension tube, and a

support pin:

(Though omitted from this diagram, the support pin is tethered

to the base by a chain and “S” hook.) These are heavy

‐ duty

support stands; the conical base is approximately 163⁄4 inches

tall and approximately 15 d inches in diameter, the extension4 Nos. 12

‐ 3024 & 12

‐ 3025

tube is approximately 331⁄4 inches tall and approximately 2 f

inches in diameter, and the stand has a capacity rating of 12

tons when used properly. There are eight holes along the

extension tube, each of which is roughly 3⁄4 inch in diameter. To

adjust the height, the user places the support pin into the

appropriate hole and allows the pin to rest on top of the base.

The base lacks a bottom, so if the support pin is not used the

extension tube will touch the ground. When this happens, the

support stand becomes unstable because the weight of the load

is not distributed to the broad conical base but instead rests

almost entirely on the narrow extension tube.

The “Parts List and Operating Instructions” accompanying

the support stands contains the following relevant safety

precautions and operating instructions:

Safety Precautions

CAUTION: To prevent personal injury,

... .

 Always use the support pin, which must be

completely inserted through the support

stand extension tube.

... .

 The load and support stand(s) must be stable

before beginning any repairs underneath the

load.Nos. 12

‐ 3024 & 12

‐ 3025 5

Operating Instructions

... .

4. Insert the support pin

... completely through

both walls of the extension tube.

IMPORTANT: Always check the placement of

the support pin before lowering a load onto a

support stand.

... .

CAUTION: To prevent personal injury, the

load and support stand(s) MUST be stable

before any work begins underneath the load.

(For the full set of safety precautions and operating instruc

‐

tions, see Appendix A, infra .) On the left side of the safety

precautions are three pictograms: one shows a person reading

instructions; one shows debris bouncing off of a person’s

protective eyewear; and one shows a load falling on a person.

Also, affixed to the base of each support stand is a decal,

which in relevant part provides:

WARNING

To prevent personal injury,

... .

 Always use the support pin; insert support

pin completely through extension tube.

... .



... . Load and support stand(s) must be stable

before working beneath vehicle.6 Nos. 12

‐ 3024 & 12

‐ 3025

(For the full decal, see Appendix B, infra .) The warning decal

also includes three pictograms, and each appears to the left of

one of the first three bulleted instructions: the pictogram

showing a person reading instructions appears next to the

instruction that the user follow all instructions; the pictogram

showing debris bouncing off of a person’s safety goggles

appears next to the instruction to wear eye protection; and the

pictogram showing a load falling on top of a person appears

next to the instruction not to exceed the capacity rating. No

pictograms appear before the remaining four bulleted instruc

‐

tions, including the support

‐ pin instruction, but those instruc

‐

tions are positioned below the pictogram illustrating a load

falling on a person.

It is undisputed that Weigle and Moore did not use the

support pin on the day of the incident. Weigle took care of

situating the trailer onto the support stands, and he admitted

that he never read the “Parts List and Operating Instructions”

or the decal affixed to each support stand. Moore, on the other

hand, had previously read all the instructions and warnings,

but he did not inspect the support stands to see if the support

pins were in place.

B. Summary Judgment Proceedings

Weigle and Moore sued SPX in state court, asserting claims

of inadequate warnings and defective design under the IPLA,

and SPX removed both cases to the Southern District of

Indiana, see 28 U.S.C. §§ 1332, 1441. 2 At the close of discovery,

2 April Weigle and Corinne Moore each joined their respective husband’s

(continued...)Nos. 12

‐ 3024 & 12

‐ 3025 7

SPX filed near

‐ identical motions for summary judgment in

both cases. See Fed. R. Civ. P. 56.

In opposition to SPX’s motions for summary judgment,

Weigle and Moore designated evidence that, according to

industry custom, it is safest to operate support stands in their

lowest possible position. Weigle testified in his deposition that

the lowest position is the safest because it minimizes the

distance that the mechanics have to lift the heavy tires when

removing and reinstalling them. Similarly, Moore testified that

he had been taught that support stands must be operated in the

lowest possible position to ensure maximum stability. Roger

Tapy, the owner and president of Truckers at the time of the

incident, also noted that “in standard business, the lowest part

of the stand is the safest height.”

Weigle and Moore also presented evidence that the SPX

support stands are unlike most (if not all) other support stands

on the market. Moore testified that other support stands are

designed such that the center column cannot touch the ground

even when a pin is not used, and for this reason, Moore was

under the impression that the pin was merely used to adjust

the support stands’ height. Tapy also testified that in his 25

years with Truckers, the SPX support stands were the only

2 (...continued)

complaint and asserted derivative claims for loss of consortium. Addition

‐ ally, Guarantee Insurance Company, Truckers’ worker’s compensation

carrier, intervened to protect its lien under the Indiana Worker’s Compensa

‐

tion Act, see Ind. Code § 22

‐ 3

‐ 2

‐ 13. Neither the wives’ loss

‐ of

‐ consortium

claims nor the intervener’s interests have any independent bearing on this

appeal.8 Nos. 12

‐ 3024 & 12

‐ 3025

ones in which the center column could touch the ground when

the pin was not used; the other approximately 60 stands with

which he had experience were designed so that the center

column could never touch the ground.

They also designated the report and deposition testimony

of William Dickenson, a professional engineer. Dickenson

opined that the SPX support stands were defective and

unreasonably dangerous because the column is permitted to

pass through the plane of the base in the unpinned position. In

his view, the support stands do not satisfy the requirements for

the design of the central column set forth in Part 4 of the

American Society of Mechanical Engineers’s Portable Automo

‐

tive Lifting Device standards (“ASME PALD

‐ 4”). As relevant

here, the section of ASME PALD

‐ 4 in both the 1993 and 2005

standards addressing columns provides: “In the fully retracted

position, the lower end of the column shall not extend below

the plane made where the base contacts the ground.”

Dickenson interprets the term “fully retracted position” to refer

to the lowest position of the column without use of the pin. He

bases this interpretation on the fact that the 1993 and 2005

standards departed from the term “lowest operating position”

(i.e., the lowest position with the pin) used in the 1991 stan

‐

dard.

Dickenson opined that utilizing the support stands without

the support pin was foreseeable. In his opinion, SPX “could

have designed the column of the stand with a stop that

prevented the column from retracting into the stand beyond its

lowest operating position. This could have been accomplished

by simply permanently installing a pin in the hole that estab

‐

lishes the lowest operating position of the vehicle stands.”Nos. 12

‐ 3024 & 12

‐ 3025 9

Dickenson acknowledged the warnings against not using the

support pin, but he explained that “[a] warning is not an

adequate solution because warnings are not as effective at

removing hazards as designing the system so that the hazard

would be eliminated. Warnings rely upon human actions,

which are often not reliable.” He admitted that he had not

conducted a statistical or financial analysis respecting his

proposed alternative, but he testified that it cost him only

about $10 to alter the support stands. He also noted in his

report that after reviewing the descriptions of other support

stands that are similar to the SPX support stands, the SPX

stands appear to be the only ones on the market that fail to

satisfy ASME PALD

‐ 4. Finally, Dickenson noted that based on

all the materials he had reviewed it did not appear that the

designers had conducted “any failure modes and effects

analysis, any hierarchy of design analysis, [or] any application

of safety through design in this product”; in his view, not only

did the designers not exercise reasonable care, they exercised

no care at all.

Weigle and Moore also designated the deposition of

Michael Schoenoff, Manager of Mechanical Engineering at

SPX, whom SPX had designated both as an expert witness and

as its representative under Federal Rule of Civil Procedure

30(b)(6). In Schoenoff’s view, the support stands were not

defectively designed and were misused by the plaintiffs. He

explained that Dickenson’s interpretation of the ASME PALD

‐ 4

standard was in error because “fully retracted position” refers

to the lowest position of the stand when the pin is used.

Schoenoff also testified that SPX was aware in 1985 that the

support stand was unstable without the pin. He also agreed10 Nos. 12

‐ 3024 & 12

‐ 3025

that there is no evidence that SPX considered alternative

designs. Nor is there any evidence that SPX conducted a

hazard

‐ risk or failure

‐ mode analysis on the support stand.

Lastly, Weigle and Moore designated the deposition of

Larry Betcher, Manager of Product Innovation at SPX, who

designed the SPX support stand at issue. Like Schoenoff,

Betcher disagreed with Dickenson’s interpretation of ASME

PALD

‐ 4 and interpreted “fully retracted position” to refer to

the lowest pinned position. Betcher also testified that use of the

support stand without the support pin is inherently dangerous

because the load is likely to come crashing down. He admitted

that it was foreseeable that a user might operate the support

stand without the pin, which is why the instruction that the pin

should always be used was included. Betcher also testified that

no alternative designs had been considered, no field studies

had been conducted to determine whether the support stand

was being operated without the pin, and the effectiveness of

the warnings never had been tested.

The district court granted summary judgment for SPX on

all claims. It first concluded that the instructions and warnings

were adequate as a matter of law. As to the defective

‐ design

claims, the court did not address the sufficiency of Weigle’s

and Moore’s designated evidence. Instead, relying on Marshall

v. Clark Equipment Co.

, 680 N.E.2d 1102, 1106 (Ind. Ct. App.

1997), it concluded that because the warnings were adequate,

the support stands were neither defective nor unreasonably

dangerous. Weigle and Moore now appeal.Nos. 12

‐ 3024 & 12

‐ 3025 11

II. Discussion

We review a district court’s grant of summary judgment de

novo, Abbott v. Sangamon County, Ill.

, 705 F.3d 706, 713 (7th Cir.

2013), construing all facts and inferences in favor of the

nonmovants, Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255

(1986). Summary judgment is proper “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett

, 477 U.S. 317, 322–23

(1986).

The IPLA “imposes liability upon sellers of a product in a

defective condition unreasonably dangerous to any user or

consumer.” Ford Motor Co. v. Rushford

, 868 N.E.2d 806, 809

(Ind. 2007) (citation omitted); see Ind. Code § 34

‐ 20

‐ 2

‐ 1. A

plaintiff bringing an action under the IPLA must establish that

(1) the product was in a defective condition; (2) the product

was unreasonably dangerous; (3) the plaintiff was a foreseeable

user or consumer; (4) the defendant was in the business of

selling the product; (5) the product was expected to and did

reach the user or consumer without substantial alteration; and

(6) the defect in the product caused the plaintiff’s injury. See

Ind. Code § 34

‐ 20

‐ 2

‐ 1; Bourne v. Marty Gilman, Inc.

, 452 F.3d

632, 635–36 (7th Cir. 2006); Koske v. Townsend Eng’g Co.

, 551

N.E.2d 437, 440–41 (Ind. 1990). In this case there is no dispute

that Weigle and Moore were foreseeable users of the support

stands, that SPX was in the business of selling the support

stands, and that the support stands had not been substantially

altered.12 Nos. 12

‐ 3024 & 12

‐ 3025

A product can be defective because of a manufacturing

defect, a design defect, or a lack of adequate instructions and

warnings. See Ind. Code §§ 34

‐ 20

‐ 2

‐ 1 to

‐ 3; Hoffman v. E.W. Bliss

Co.

, 448 N.E.2d 277, 281 (Ind. 1983). Inadequate

‐ warning and

defective

‐ design claims both sound in negligence. See Ind.

Code § 34

‐ 20

‐ 2

‐ 2. To prevail on a negligence claim a plaintiff

must establish “(1) a duty owed by the defendant to the

plaintiff; (2) a breach of that duty by the defendant; and (3) an

injury to the plaintiff proximately caused by the breach.”

Rushford

, 868 N.E.2d at 810 (citation omitted).

A. Inadequate

‐ Warnings Claims

A product is defective under the IPLA “if the seller fails to:

(1) properly package or label the product to give reasonable

warnings of danger about the product; 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 to the user or consumer.” Ind.

Code § 34

‐ 20

‐ 4

‐ 2; see also Rushford

, 868 N.E.2d at 810 (“This

duty is twofold: (1) to provide adequate instructions for safe

use and (2) to provide a warning as to dangers inherent in

improper use.”). A “‘product label must make apparent the

potential harmful consequences. The warning should be of

such intensity as to cause a reasonable man to exercise for his

own safety caution commensurate with the potential danger.’”

Jarrell v. Monsanto Co.

, 528 N.E.2d 1158, 1162 (Ind. Ct. App.

1988) (citation omitted). A warning’s adequacy is measured by

its factual content, the manner in which it is expressed, and the

method of conveying these facts. Id. at 1162–63. The adequacy

of a warning (i.e., whether the defendant breached its duty to

warn) is generally a question of fact, but it can be decided as aNos. 12

‐ 3024 & 12

‐ 3025 13

matter of law when the facts are undisputed and only one

inference can be drawn from those facts. Cook v. Ford Motor Co.

,

913 N.E.2d 311, 327 (Ind. Ct. App. 2009).

SPX argues that the district court’s judgment should be

affirmed because the warnings and instructions clearly

informed users that the support pins are always to be used and

that failure to use them can result in personal injury. Alterna

‐ tively, SPX contends that, even if the warnings are not suffi

‐

cient as a matter of law, the district court’s judgment should

still be affirmed because any alleged defect in the warnings

could not have been the proximate cause of Weigle’s and

Moore’s injuries because Weigle did not read the warnings and

Moore did not inspect the stands to ensure that the pins were

in place. We need not reach the issue of proximate cause

because we agree with SPX and the district court that the

warnings are sufficient as a matter of law, hence Weigle and

Moore have failed to establish that SPX breached its duty to

warn.

Weigle and Moore acknowledge that the “Parts List and

Operating Instructions” and the decal affixed to the stands

both provide instructions for safe use (“[a]lways use the

support pin; insert support pin completely through extension

tube”) and warnings about the dangers inherent in improper

use (“personal injury” accompanied by a pictogram showing

a load falling on top of a person), but they contend that this is

not sufficient. According to them, the warnings are inadequate

because they do not warn “that the jack stand is unstable when

the bottom of the extension column touches the ground when

the pin is not inserted,” that is, “the warnings’ content was

deficient because it failed to explain the significance of the14 Nos. 12

‐ 3024 & 12

‐ 3025

support pin in maintaining the stability of the jack stand.”

They reaffirmed their position at oral argument when they

unequivocally stated that the warnings must provide not only

the consequences of not using the pin but also the mechanics

of the pin (e.g., use the pin or the stand will not be stable).

Weigle and Moore cite only Cook

, 913 N.E.2d 311, in

support of their position. Cook arose from a car accident in

which an eight

‐ year

‐ old child, who had not been wearing a

seatbelt, was severely injured when the front passenger

‐ seat

airbag deployed. Id. at 315–17. The owner’s manual accompa

‐ nying the vehicle indicated that the airbag (which could be

deactivated) should always be on “unless there is a rear

‐ facing

infant seat installed in the front seat” and that turning off the

passenger airbag “increases the likelihood of injury to forward

facing occupants in the passenger seat.” Id. at 316, 326. The

plaintiffs had designated expert testimony that airbags pose a

risk to all children in the front passenger seat, not just children

in rear

‐ facing child seats. Id. at 326. The Indiana Court of

Appeals reversed the trial court’s grant of summary judgment,

explaining that the warnings were not adequate as a matter of

law because, based on the wording of the owner’s manual and

the expert testimony, there was “a question of fact as to

whether a reasonable person would have understood from

Ford’s instructions that injury could occur under these circum

‐

stances.” Id. at 327. One judge dissented on grounds that the

Cooks had failed to comply with Ford’s other instructions to

place children in the backseat and to wear seatbelts. Id. at

334–35 (Brown, J., concurring in part and dissenting in part).

The majority rejected the dissent’s reasoning because “the

language selected by Ford with respect to the additionalNos. 12

‐ 3024 & 12

‐ 3025 15

warnings was permissive; that is, it equivocally instructed to

place children in the backseat ‘if possible,’ ‘suggested’ that

children are safer there, and that occupants ‘should’ always

wear seat belts.” Id. at 328 (majority opinion). The warnings

also failed to provide “that one of the risks from which

children are possibly safer is injury from deployment of the

front seat passenger airbag.” Id. The court concluded that there

was a question of fact as to whether Ford’s warnings were

“strong and specific enough to warn the Cooks that the

additional instructions [on placing children in the backseat and

wearing seatbelts] were linked to danger from the airbag.” Id.

Like the district court, we are unable to see how Cook

supports Weigle’s and Moore’s argument that SPX’s warnings

are inadequate because they fail to explain the mechanics of

the support pin. Unlike the instructions in Cook

, the instruc

‐

tions here provide that the support pin “always” must be used

by placing it all the way through the column and that the risk

of not using the support pin is personal injury; in other words,

the warnings here cannot be construed as permissive or

equivocal.

Moreover, SPX’s instruction that the support pin must

always be used is linked to the risk of personal injury and is

accompanied by a pictogram illustrating a load falling on top

of a person. Weigle and Moore suggest that the placement of

the pictogram on the decal affixed to the support stands is

confusing because it is placed next to the instruction not to

exceed the capacity rating and not next to the instruction

regarding the support pin. See Appendix B, infra

. They claim

that Betcher testified in his deposition that the pictogram was

intended to apply only to the warning that appears immedi

‐16 Nos. 12

‐ 3024 & 12

‐ 3025

ately following the picture. We are not persuaded that this

raises an issue of triable fact. For one thing, Betcher actually

testified that the pictogram applied to the capacity

‐ warning

rating and to all subsequent warnings and instructions on the

decal. In addition, immediately following the instruction in the

“Parts List and Operating Instructions” related to insertion of

the support pin is a bolded instruction, preceded by “IMPOR

‐

TANT,” that the user should “[a]lways check the placement of

the support pin before lowering a load onto a support stand.”

See Appendix A, infra

. In short, the instructions and warnings

convey to a user that failure to use the support pin may result

in personal injury caused by the load falling. No additional

warnings need to be furnished where such warnings would

not supplement the user’s understanding of the nature and

characteristics of the product. See Shanks v. A.F.E. Indus., Inc.

,

416 N.E.2d 833, 837 (Ind. 1981); Birch v. Midwest Garage Door

Sys.

, 790 N.E.2d 504, 518 (Ind. Ct. App. 2003).

What Weigle and Moore really desire is a physics lesson to

accompany the support stands. We have been unable to find

any Indiana authority supporting their view (which invariably

would lead to claims that the warnings are too technical and

confusing). Indeed, we rejected a similar argument in

McMahon v. Bunn

‐ O

‐ Matic Corp.

, 150 F.3d 651 (7th Cir. 1998).

In McMahon

, the plaintiff had been badly burned by coffee

purchased from a gas station and had sued the manufacturer

of the coffee maker under Indiana law, claiming that it had

“failed to warn consumers about the severity of burns that hot

coffee can produce.” Id. at 654. The plaintiff argued that the

warnings should have indicated that hot coffee can cause third

‐ degree burns. We rejected her argument:Nos. 12

‐ 3024 & 12

‐ 3025 17

Bunn can’t deliver a medical education with each

cup of coffee. Any person severely injured by

any product could make a claim, at least as

plausible as the McMahons’, that they did not

recognize the risks ex ante as clearly as they do

after the accident.

Insistence on more detail can make any

warning, however elaborate, seem inadequate.

Indiana courts have expressed considerable

reluctance to require ever

‐ more detail in warn

‐ ings. See Meyers v. Furrow Building Materials

, 659

N.E.2d 1147 (Ind. Ct. App. 1996); Welch v. Scripto

‐

Tokai Corp.

, 651 N.E.2d 810 (Ind. Ct. App. 1995).

For good reasons, laid out in Todd v. Societe BIC,

S.A.

, 9 F.3d 1216, 1218–19 (7th Cir. 1993) (en

banc) (Illinois law): “Extended warnings present

several difficulties, first among them that, the

more text must be squeezed onto the product,

the smaller the type, and the less likely is the

consumer to read or remember any of it. Only

pithy and bold warnings can be effective. Long

passages in capital letters are next to illegible,

and long passages in lower case letters are

treated as boilerplate. Plaintiff wants a warning

in such detail that a magnifying glass would be

necessary to read it. Many consumers cannot

follow simple instructions (including pictures)

describing how to program their video cassette

recorders.” Indiana has the same general under

‐ standing

... .18 Nos. 12

‐ 3024 & 12

‐ 3025

McMahon

, 150 F.3d at 656–57 (citation omitted). SPX was not

required to explain the physics of the support stands to satisfy

its duty to provide adequate instructions and warnings.

Rather, it is enough that SPX instructed users on how to use

the stand properly (“[a]lways use the support pin”) and

warned users of the inherent dangers of not following those

instructions (“personal injury” with a pictogram of a load

falling on a person). We thus agree with the district judge that

Weigle and Moore have failed to demonstrate a genuine issue

of material fact as to the adequacy of the warnings.

B.Defective

‐ Design Claims

A second way that a product can be in a defective condition

under the IPLA is “if, at the time it is conveyed by the seller to

another party, it is in a condition: (1) not contemplated by

reasonable persons among those considered expected users or

consumers of the product; and (2) that will be unreasonably

dangerous to the expected user or consumer when used in

reasonably expectable ways of handling or consumption.” Ind.

Code § 34

‐ 20

‐ 4

‐ 1. As noted earlier, defective

‐ design claims

sound in negligence, so a party alleging a design defect “must

establish that the manufacturer or seller failed to exercise

reasonable care under the circumstances in designing the

product.” Ind. Code § 34

‐ 20

‐ 2

‐ 2; see TRW Vehicle Safety Sys., Inc.

v. Moore

, 936 N.E.2d 201, 209 (Ind. 2010). A plaintiff alleging

defective design as a result of negligence must demonstrate

that the defendant failed “to take precautions that are less

expensive than the net costs of accidents.” McMahon

, 150 F.3d

at 657; see also Bammerlin v. Navistar Int’l Transp. Corp.

, 30 F.3d

898, 902 (7th Cir. 1994); Miller v. Todd

, 551 N.E.2d 1139, 1141,

1143 (Ind. 1990). In other words, to establish that the defendantNos. 12

‐ 3024 & 12

‐ 3025 19

was negligent the plaintiff must establish B < PL, where B is the

cost of the precaution (i.e., the “burden” of avoiding the

accident), P is the probability of the accident that the precau

‐

tion would have prevented, and L is the loss if there is an

accident that the precaution could have prevented. Bourne

, 452

F.3d at 637; Mesman v. Crane Pro Servs.

, 409 F.3d 846, 849 (7th

Cir. 2005); Bammerlin

, 30 F.3d at 902; see also United States v.

Carroll Towing Co.

, 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.).

Consequently, “the fact that the probability of a particular

failure is low is no defense if the costs of protecting against it

are even lower.” Bammerlin

, 30 F.3d at 902 (citing Restatement

(Third) of Torts: Products Liability § 2(b) & reporters’ notes, at

40–45, 123–25 (Tentative Draft No. 1, 1994)). 2

2 In TRW Vehicle Safety Systems

, the Indiana Supreme Court dropped a

somewhat confusing footnote in which it explained that the Indiana

Legislature had adopted a negligence standard for defective

‐ design claims,

instead of the strict

‐ liability standard articulated in Restatement (Third) of

Torts: Products Liability § 2(b), at 14 (1998) (hereinafter Products Liability ). 936

N.E.2d at 209 n.2. The reason this is confusing is that § 2(b) does not

articulate a strict

‐ liability standard; it articulates a risk

‐ utility standard,

similar to B < PL, by providing that a product “is defective in design when

the foreseeable risks of harm posed by the product could have been reduced

or avoided by the adoption of a reasonable alternative design

... and the

omission of the alternative design renders the product not reasonably safe.”

See also Products Liability

, supra

, § 2 cmt. a, at 16 (noting that § 2(b)

“achieve[s] the same general objectives as liability predicated on negli

‐ gence”); id. § 2 cmt. d reporters’ note II

‐ A, at 49 (citing cases and observing

that while Indiana statute articulates a reasonable

‐ consumer

‐ expectations

test, Indiana courts and federal courts applying Indiana law have required

proof of a reasonable alternative design in defective

‐ design cases). Adding

further confusion is the fact that the Indiana Supreme Court went on to

(continued...)20 Nos. 12

‐ 3024 & 12

‐ 3025

In addition to establishing that the product was in a

defective condition due to negligence, a defective

‐ design

plaintiff must establish that the defective condition rendered

the product “unreasonably dangerous.” See Ind. Code § 34

‐ 20

‐

2

‐ 1; Bourne

, 452 F.3d at 635–36; McMahon

, 150 F.3d at 651. 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) (citations omitted); see

also Moss v. Crossman Corp.

, 136 F.3d 1169, 1174 (7th Cir. 1998).

For purposes of the IPLA, “unreasonably dangerous” “refers

to any situation in which the use of a product exposes the user

or consumer to a risk of physical harm to an extent beyond that

contemplated by the ordinary consumer who purchases the

product with the ordinary knowledge about the product’s

2 (...continued)

hold that there was sufficient evidence to support the jury’s verdict for the

plaintiff because, among other things, there was testimony that the

defendant had been aware of the problem and that an alternative, safer

design was both technologically and economically feasible. TRW Vehicle

Safety Sys.

, 936 N.E.2d at 210. The parties do not quarrel over the proper

standard to apply to defective

‐ design claims, so we need not attempt to

decipher what the Indiana Supreme Court was attempting to say—i.e.,

whether the court meant to disapprove of the requirement that a defective

‐ design plaintiff show that the defendant failed to take precautions that are

less expensive than the net costs of accidents, cf. Bammerlin

, 30 F.3d at 902

(“Our court has applied Judge Hand’s approach in many kinds of negli

‐

gence actions, and as the definition of a product defect in Indiana depends

on general principles of negligence, we have no reason to think that state

would see things otherwise.” (internal citations omitted)).Nos. 12

‐ 3024 & 12

‐ 3025 21

characteristics common to the community of consumers.” Ind.

Code § 34

‐ 6

‐ 2

‐ 146.

A reasonable fact finder could determine from Weigle’s and

Moore’s designated evidence that the SPX support stands at

issue were in a defective condition that was unreasonably

dangerous. That the SPX support stands differ from most (if

not all) others on the market (in allowing the center column to

drop all the way to the ground) tends to show that their design

is not contemplated by reasonable persons among those

considered expected users. Additionally, because the SPX

stands are inherently unstable when used without the pin, but

other available stands are not (because of built

‐ in safeguards),

a fact finder could find that the stands are unreasonably

dangerous. The risk that the stands would be used without the

pin was concededly foreseeable, and a fact finder could

determine that failure to take the minor precaution of building

in a safeguard, such as a permanent pin in the lowest operating

position or some other type of barrier preventing the extension

tube from dropping below that position, demonstrates that

SPX failed to exercise reasonable care under the circumstances.

A fact finder might also conclude that the lack of any evidence

that SPX undertook a hazard

‐ risk or failure

‐ mode analysis on

the support stand demonstrates negligence. Finally, a fact

finder could find a lack of reasonable care under the circum

‐

stances because the support stands fail to comply with ASME

PALD

‐ 4. To be sure, there is a dispute over the meaning of the

standard and whether the support stands satisfy it, but this

merely establishes a genuine issue of material fact; unlike the

interpretation of an ambiguous state or federal regulation, see,

e.g.

, Bammerlin

, 30 F.3d at 900, the meaning of an industry22 Nos. 12

‐ 3024 & 12

‐ 3025

standard is a factual issue to be resolved by the fact finder. In

any event, even if we were to accept SPX’s interpretation of

ASME PALD

‐ 4, Weigle and Moore have designated sufficient

evidence to withstand summary judgment because compliance

with an industry standard does not necessarily defeat a

defective

‐ design claim under the IPLA. See Ind. Code § 34

‐ 20

‐ 5

‐ 1(1).

The district court never addressed the plaintiffs’ designated

evidence because, relying on Marshall v. Clark Equipment Co.

,

680 N.E.2d 1102, 1106 (Ind. Ct. App. 1997), it concluded that

the presence of adequate warnings rendered the support

stands nondefective and not unreasonably dangerous. This

was SPX’s primary argument in the district court, but it does

not mount much of a defense of the district court’s rationale in

its brief to this court. At oral argument, however, SPX made

clear its belief that a manufacturer is not required to design a

safer product in anticipation of users ignoring adequate

warnings. Effectively, the position taken by SPX and adopted

by the district court is that adequate instructions and warnings

amount to a complete defense to a defective

‐ design claim.

Weigle and Moore do not dispute that the district court

properly applied Marshall

, but they argue that Marshall is

inconsistent with current Indiana law. 3 As an alternative

3 Though they developed their arguments that there are triable issues of

fact, it does not appear that Weigle and Moore argued below that Marshall

is inconsistent with current law. Perhaps this is because they also main

‐

tained that the warnings were inadequate, as Marshall would not have come

into play had the district court been unable to find that the warnings were

adequate as a matter of law. We need not decide whether Weigle’s and

(continued...)Nos. 12

‐ 3024 & 12

‐ 3025 23

ground for affirmance, SPX argues that the defense of misuse

entitles it to summary judgment on the defective

‐ design

claims. See Ind. Code § 34

‐ 20

‐ 6

‐ 4. Though presented below, the

district court did not address this argument because it had no

need to do so. We address each defense in turn.

1. Adequate Warnings “Defense”

In Marshall

, a plaintiff who had been injured while operat

‐ ing a forklift appealed from an adverse judgment on the

ground that the trial court had erred in refusing his tendered

jury instruction, which in relevant part provided that “[i]f the

product can be made reasonably safe by selecting an available

alternative design, the manufacturer must do so rather than

merely place a warning on the product.” Id. at 1104 (internal

quotation marks omitted). The Indiana Court of Appeals

rejected the plaintiff’s argument, finding that the tendered

instruction had not correctly stated Indiana law. Id. at 1104–06.

The court explained that “[w]hile warnings cannot make a

dangerous product safe, such warnings may avert liability.” Id.

at 1105 (citing Jarrell

, 528 N.E.2d at 1166). Relying almost

exclusively on Dias v. Daisy

‐ Heddon

, 390 N.E.2d 222, 225 (Ind.

Ct. App. 1979), which in turn had relied on Comment j to the

Restatement (Second) of Torts § 402A (1965), the court held that

“a manufacturer may avoid liability by placing adequate

warnings on a product even when there is evidence of a ‘safer’

alternative design.” Marshall

, 680 N.E.2d at 1106.

3 (...continued)

Moore’s failure to raise their argument below amounts to waiver because

SPX has not claimed on appeal that they waived it.24 Nos. 12

‐ 3024 & 12

‐ 3025

Contrary to SPX’s assertion in its brief, the Indiana Su

‐

preme Court has not addressed the issue. In Rushford

, a duty

‐

to

‐ warn case, the court held that, “absent special circum

‐

stances, if the manufacturer provides adequate warnings of the

danger of its product and the seller passes this warning along

to the buyer or consumer, then the seller has no obligation to

provide additional warnings.” 868 N.E.2d at 811. It is true that

the Rushford court found support for its holding in Dias

, specifically, Dias ’s quotation of § 402A, Comment j. 868 N.E.2d

at 811 (quoting Dias

, 390 N.E.2d at 225). But the court’s citation

of Dias was not necessary to determining the issue before

it—whether a seller has a duty to provide warnings to supple

‐

ment the warnings provided by the manufacturer where the

product has not been altered. And “statements not necessary

in the determination of the issues presented are obiter dictum

. They are not binding and do not become the law.” Koske

, 551

N.E.2d at 443 (citations omitted); see also Ind. Harbor Belt R.R.

Co. v. Am. Cyanamid Co.

, 916 F.2d 1174, 1176 (7th Cir. 1990)

(“No court is required to follow another court’s dicta.” (citation

omitted)).

As this is a diversity case, we are bound to apply Indiana

law as we predict it would be applied by the Indiana Supreme

Court. See, e.g.

, Erie R.R. Co. v. Tompkins

, 304 U.S. 64, 78 (1938);

State Farm Mut. Auto. Ins. Co. v. Pate

, 275 F.3d 666, 669 (7th Cir.

2001). Where, as here, the Indiana Supreme Court has not

squarely addressed the issue, we will follow the decisions of

the Indiana Court of Appeals unless there are persuasive

reasons to believe that the high court would disagree with

them. Gutierrez v. Kermon

, No. 12

‐ 2934, 2013 WL 3481359, at *7

n.2 (7th Cir. July 12, 2013); see Ind. Harbor Belt R.R. Co.

, 916 F.2dNos. 12

‐ 3024 & 12

‐ 3025 25

at 1176 (“We are not required to follow even the holdings of

intermediate state appellate courts if persuaded that they are

not reliable predictors of the view the state’s highest court

would take.” (citations omitted)). For several reasons, we are

persuaded that the Indiana Supreme Court would not apply

Marshall to the defective

‐ design claims in this case.

It is helpful to begin with a brief review of the development

of products

‐ liability law in Indiana. Prior to the enactment of

the IPLA in 1978, the Indiana Supreme Court had adopted the

doctrine of strict products liability set forth in § 402A. Dias

, 390

N.E.2d at 224; see Ayr

‐ Way Stores, Inc. v. Chitwood

, 300 N.E.2d

335, 339–40 (Ind. 1973). In 1978, the Indiana Legislature

codified most aspects of § 402A into the IPLA, but it left claims

based on negligence to the common law. See Miller

, 551 N.E.2d

at 1143; Koske

, 551 N.E.2d at 442–43. The Indiana Supreme

Court made this clear in Koske

, where it held that the “open

and obvious danger” rule did not apply to strict liability

claims, as it had not been included in the IPLA, but remained

applicable to negligence claims because the IPLA had not at

that time been extended to negligence. 551 N.E.2d at 442–43. In

1995, the Indiana Legislature amended the IPLA to apply to all

products

‐ liability actions, regardless of the substantive legal

theory, Ind. Code § 34

‐ 20

‐ 1

‐ 1, and provided that defective

‐ design and inadequate

‐ warnings claims are to be governed by

negligence principles rather than strict liability, § 34

‐ 20

‐ 2

‐ 2. See

Bourne

, 452 F.3d at 635. Because the IPLA had codified the

entire field of products liability, we held in Mesman that the

“open and obvious danger” rule no longer applied to

defective

‐ design claims because the legislature had omitted

that defense. 409 F.3d at 850. Another important feature of the26 Nos. 12

‐ 3024 & 12

‐ 3025

1995 amendments was the addition of the requirement that

liability under the IPLA “be determined in accordance with the

principles of comparative fault.” Green v. Ford Motor Co.

, 942

N.E.2d 791, 794 (Ind. 2011).

Notably absent from the current statute is a defense or

presumption that adequate warnings render a product not

defective and not unreasonably dangerous. The statute

provides only three defenses: incurred risk, misuse (not

reasonably foreseeable), and modification. Ind. Code §§ 34

‐ 20

‐

6

‐ 3 to

‐ 5. These are the only defenses available in an action

under the IPLA. See McGraw

‐ Edison v. Ne. Rural Electric

Membership Corp.

, 678 N.E.2d 1120, 1123–25 (Ind. 1997) (hold

‐ ing that disclaimer in purchase agreement purportedly limiting

seller’s liability was no defense to action under IPLA); see also

Mesman

, 409 F.3d at 850. The statute does supply a rebuttable

presumption that a product is not defective if it either “was in

conformity with the generally recognized state of the art

applicable to the safety of the product” or “complied with

applicable codes, standards, regulations, or specifications

established, adopted, promulgated, or approved” by a federal

or Indiana governmental body or agency. Ind. Code § 34

‐ 20

‐ 5

‐

1. This presumption is not applicable here, and there are no

other presumptions delineated in the IPLA.

To be sure, the statute provides that a product is in a

defective condition if not accompanied by adequate instruc

‐

tions and warnings, so if a product bears adequate instructions

and warnings it is not in a defective condition under § 34

‐ 20

‐ 4

‐

2. But the statute also provides an alternative basis for finding

a product in a defective condition, § 34

‐ 20

‐ 4

‐ 1, and that section

determines whether a product has a design defect or a manu

‐Nos. 12

‐ 3024 & 12

‐ 3025 27

facturing defect. Nothing in the IPLA indicates that the lack of

a defect under § 34

‐ 20

‐ 4

‐ 2 precludes a finding of a defect under

§ 34

‐ 20

‐ 4

‐ 1. It is true that “[a] product is not defective

... if it is

safe for reasonably expectable handling and consumption. If an

injury results from handling, preparation for use, or consump

‐

tion that is not reasonably expectable, the seller is not liable

under this article.” § 34

‐ 20

‐ 4

‐ 3. But in this case, Weigle and

Moore have come forth with evidence that it was reasonably

expectable that the support stands would be used sans support

pin and that using the stands in that manner was not safe. They

have also designated evidence that the support stands are not

incapable of being made safe. Cf. § 34

‐ 20

‐ 4

‐ 4.

Moreover, SPX’s view that a manufacturer should not have

to design safer products if it provides adequate warnings is

inconsistent with the standard of care for product design set

forth in § 34

‐ 20

‐ 2

‐ 2. A product designer must exercise reason

‐

able care under the circumstances, and it is unreasonable to

omit from a product an easily installed and inexpensive

safeguard that would prevent potentially fatal accidents and

rely simply on the users’ ability and willingness to read,

comprehend, and follow all instructions and warnings on all

occasions. See Koske

, 551 N.E.2d at 441 (criticizing “open and

obvious” rule as obscuring or minimizing “consideration of

human factors related to the foreseeable circumstances of

expected product use” (citations omitted)); see also Mesman

, 409

F.3d at 849–52. The American Law Institute has explained:

In general, when a safer design can reasonably be

implemented and risks can reasonably be designed out

of a product, adoption of the safer design is required

over a warning that leaves a significant residuum of28 Nos. 12

‐ 3024 & 12

‐ 3025

such risks. For example, instructions and warn

‐ ings may be ineffective because users of the

product may not be adequately reached, may be

likely to be inattentive, or may be insufficiently

motivated to follow the instructions or heed the

warnings. However, when an alternative design

to avoid risks cannot reasonably be

implemented, adequate instructions and warn

‐ ings will normally be sufficient to render the

product reasonably safe. Warnings are not, how

‐

ever, a substitute for the provision of a reasonably safe

design.

Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998)

(emphases added) (hereinafter Products Liability ). The Re

‐ porter’s Note to Comment l explains that the contrary

rule—applied in Marshall —is based on the “unfortunate

language” of § 402A Comment j, and notes that Comment j

“has elicited heavy criticism from a host of commentators.” Id.

§ 2 cmt. l reporters’ note, at 101; see Howard Latin, Good

Warnings, Bad Products, and Cognitive Limitations

, 41 U.C.L.A.

L. Rev. 1193, 1206–07 (1994); A.D. Twerski et al., The Use and

Abuse of Warnings in Products Liability—Design Defect Litigation

Comes of Age

, 61 Cornell L. Rev. 495, 506 (1976). The Reporter’s

Note goes on to explain that “Comment j of the Restatement,

Second, is inconsistent with the judicial abandonment of the

patent danger rule.” Products Liability

, supra

, § 2 cmt. l report

‐

ers’ note, at 101; cf. Mesman

, 409 F.3d at 850 (explaining that

Indiana has abandoned the patent

‐ danger rule).Nos. 12

‐ 3024 & 12

‐ 3025 29

This is not to say that the provision of adequate instructions

and warnings is irrelevant to a defective

‐ design claim. The

IPLA expressly requires that liability be determined under

principles of comparative fault. Ind. Code § 34

‐ 20

‐ 8

‐ 1; Green

,

942 N.E.2d at 794. Indiana law allows a fact finder to consider

a wide variety of factors in the allocation of fault. Green

, 942

N.E.2d at 794–95. A defendant in a defective

‐ design case can

argue to the fact finder that the plaintiff’s failure to read and

heed adequate warnings and instructions was itself negligent

and that fault should be allocated accordingly. If the fact finder

allocates more than 50% of the total fault to the plaintiff, then

the defendant will avoid liability. Ind. Code §§ 34

‐ 51

‐ 2

‐ 7 &

‐ 20

‐

8

‐ 1.

In sum, we predict that the Indiana Supreme Court would

not apply Marshall ’s holding to bar Weigle’s and Moore’s

defective

‐ design claims. The current version of the IPLA

furnishes no basis for SPX’s adequate

‐ warnings defense, and

that defense is inconsistent with the standard of care required

of product designers. At most, a plaintiff’s failure to read and

heed adequate instructions and warnings is something for the

fact finder to consider in allocating fault.

2. Misuse

The IPLA recognizes a defense “that a cause of the physical

harm is a misuse of the product by the claimant or any other

person not reasonably expected by the seller at the time the seller

sold or otherwise conveyed the product to another party.” Ind.

Code § 34

‐ 20

‐ 6

‐ 4 (emphases added); see, e.g.

, Leon v. Caterpillar

Indus., Inc.

, 69 F.3d 1326, 1341–44 (7th Cir. 1995). “Foreseeable

use and misuse are typically questions of fact for a jury to30 Nos. 12

‐ 3024 & 12

‐ 3025

decide.” Barnard v. Saturn Corp.

, 790 N.E.2d 1023, 1028 (Ind. Ct.

App. 2003). Misuse is not a complete defense but is considered

an aspect of comparative fault. See Chapman v. Maytag Corp.

,

297 F.3d 682, 689 (7th Cir. 2002); cf. Morgen v. Ford Motor Co.

,

797 N.E.2d 1146, 1148 n.3 (Ind. 2003) (declining to decide

whether misuse is a complete defense).

SPX relies on Barnard in arguing that it is entitled to

summary judgment. In that case, contrary to the instructions

and warnings, the decedent had used a jack that was intended

to be used only to change tires to prop up his car for an oil

change on an uneven surface, and while he was working the

car fell on top of him. 790 N.E.2d at 1031. The court found that

no reasonable jury could find the decedent to have been less

than 50% at fault. Id.

Despite the similarities between Barnard and the present

case, we conclude that SPX is not entitled to summary judg

‐

ment on the defense of misuse. Weigle and Moore have

designated evidence from which a fact finder could determine

that use of the support stands without the pin was reasonably

foreseeable. Betcher admitted as much, which is why the

instructions and warnings stressed that the pin must always be

used. 4 Moreover, the allocation of fault is classically a determi

‐

nation for the fact finder. Green

, 942 N.E.2d at 795.

4 In a footnote the Barnard court suggested that the term “reasonably

expected use” actually means “reasonably expected permitted use” because

otherwise the inclusion of a specific warning would amount to an admis

‐

sion that a use contrary to that warning was foreseeable. 790 N.E.2d at 1031

n.3.

(continued...)Nos. 12

‐ 3024 & 12

‐ 3025 31

III. Conclusion

For the foregoing reasons, the district court’s judgments are

A FFIRMED in part, V ACATED in part, and the causes are R E

‐

MANDED for further proceedings consistent with this opinion.

4 (...continued)

We do not think the Indiana Supreme Court would so brazenly insert addi

‐

tional words into a statute. See State v. Am. Family Voices, Inc.

, 898 N.E.2d

293, 297 (Ind. 2008) (“The plain meaning of the statute

... must be given

effect.”); Grody v. State

, 278 N.E.2d 280, 285 (Ind. 1972) (“It is not within the

province of this Court to expand or contract the meaning of a statute by

reading into it language which will, in the opinion of the Court, correct any

supposed omissions or defects therein.” (citation omitted)).32 Nos. 12

‐ 3024 & 12

‐ 3025

Appendix ANos. 12

‐ 3024 & 12

‐ 3025 33

Appendix B