In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4312

Norma Doerner,

Plaintiff-Appellant,

v.

Swisher International, Inc.,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 99-101-C-Y/H--Richard L. Young, Judge.

Argued September 6, 2001--Decided November 28, 2001



  Before Coffey, Kanne, and Evans, Circuit
Judges.

  Coffey, Circuit Judge. Norma Doerner
(Doerner) attempted to jump on the
tobacco-litigation bandwagon with a
novel, though meritless, claim. According
to Doerner, her ex-husband, Elmer
Doerner, smoked Swisher International’s
"Sweet Perfecto" brand of cigars
compulsively, averaging four cigars per
day from the late 1960s until 1995 when
he was diagnosed with cancer of the
tongue. After Doerner’s ex-husband died
at age 70 in 1997, six years after their
1991 divorce, she sued Swisher under the
Indiana Products Liability Act (IPLA).
Doerner’s claim rests upon her belief
that the IPLA allows her to recover
damages from Swisher for loss of
consortium and emotional distress caused
by the death of her ex-husband despite
the fact that they had been divorced for
over four years when he was initially di
agnosed with his life-ending illness. The
trial judge easily spotted the untenable
claims, dismissing some of Doerner’s
claims under Fed. R. Civ. P. 12(b)(6) and
later granting summary judgment in favor
of Swisher on the remaining claims. We
affirm.

I.   Factual Background

  On February 14, 1953, Norma and Elmer
Doerner were married in a Roman Catholic
marriage ceremony. Throughout the course
of their marriage, the Doerners remained
active parishioners of the Catholic
faith. On August 29, 1991, the Circuit
Court of Gibson County, Indiana, where
the Doerners resided, granted them a
decree of dissolution of marriage, though
they never had their marriage annulled by
the Catholic Church. Despite the divorce,
the Doerners continued to reside
together, and only a few family members
knew of the state granted termination of
their marriage contract./1

  In 1995, more than four years after they
were divorced, Elmer Doerner was
diagnosed with cancer of the tongue,
which was later determined to be the
cause of death in 1997. In June 1999,
Doerner filed this suit in the Circuit
Court of Gibson County, Indiana,/2 and
in her complaint she falsely alleged that
she was "the surviving spouse of Elmer E.
Doerner," who had died as a result of
cancer developed because he had smoked
Swisher’s cigar products. Doerner never
stated in the complaint that her marriage
to Elmer Doerner had been dissolved by
the State of Indiana in 1991. Doerner’s
complaint included claims for 1)
emotional distress, 2) loss of
consortium, and 3) constructive fraud.

  On August 23, 1999, Swisher filed a
motion to dismiss on the grounds that
Doerner failed to state any claim upon
which relief could be granted and also
failed to comply with the statutory
requirements for bringing a wrongful
death claim. In opposition to the motion
to dismiss, Doerner asserted that she had
brought her complaint on her own behalf
under the IPLA and not for the wrongful
death of Elmer Doerner.

  On March 1, 2000, the trial judge
granted Swisher’s motion to dismiss
Doerner’s claim that "as a result of the
progress of [Elmer Doerner’s] fatal
illness, and as a result of his eventual
death, [she] has suffered great mental
trauma . . . ." The trial judge also
dismissed Doerner’s constructive fraud
claim that "defendant’s knowing sale of
unreasonably dangerous tobacco products"
were not accompanied by any warning
regarding the danger. The trial judge
ruled that Doerner’s filing of the
emotional distress and constructive fraud
claims was improper as she had failed to
satisfy the "physical harm" requirement
of the IPLA. At this juncture in the
proceeding, the trial judge declined to
dismiss the loss of consortium claim,
ruling that even though Doerner’s counsel
conceded that the Doerners were not
legally married at the time of Elmer
Doerner’s death, "it was unclear whether
the divorce completely preceded Mr.
Doerner’s illness. . . ."

  Following discovery thereafter, Swisher
moved for summary judgment on Doerner’s
remaining loss of consortium claim. It
was undisputed that the Doerners were
divorced on August 29, 1991. Symptoms of
Elmer Doerner’s final illness first
appeared in March or April of 1995 and he
was not diagnosed with cancer until
October 1995, more than four years after
the dissolution of the Doerners’
marriage. The district court granted
summary judgment in favor of Swisher,
ruling that Doerner had failed to
establish that "she suffered any loss
during the pendency of her marriage to
[decedent]." Doerner appeals.

II.   Analysis

  Doerner brought her claims under the
IPLA. Ind. Code sec. 34-20-1-1, et seq.
To sustain a cause of action under the
IPLA, Doerner was required to establish,
among other things, that she suffered
"physical harm" as the "user or consumer"
of a product placed into the stream of
commerce by Swisher. Ind. Code sec. 34-
20-2-1. Physical harm includes "bodily
injury, death, loss of services, and
rights arising from any such injuries, as
well as sudden, major damage to
property." Ind. Code sec. 34-6-2-105. The
IPLA defines a "user or consumer" to
include "bystanders injured by the
product who would reasonably be expected
to be in the vicinity of the product
during its reasonably expected use." Ind.
Code sec. 34-6-2-29.

  Doerner contends that the tort doctrine
of foreseeability preserves her loss of
consortium claim./3 According to
Doerner’s theory, Swisher is liable to
her because it was foreseeable to it that
she could suffer an injury based upon her
ex-husband’s use of Swisher’s cigar
products. It may be true that it was
"foreseeable that the spouse of a cigar
smoker would suffer a loss of
consortium." Indeed, the trial judge did
rule that Doerner might have a loss of
consortium claim and allowed the case to
proceed through discovery. But the
question of "foreseeability" is limited
only to the issue of whether Doerner was
a "user or consumer" for purposes of the
IPLA.

  The IPLA, however, also required that
Doerner demonstrate that she suffered
"physical harm." Doerner argues that she
did suffer physical harm because she lost
the companionship of her ex-husband,
Elmer Doerner, with whom she had a
"stable and significant relationship,"
pointing out that she never did have her
marriage annulled in the church of her
faith and continued to reside with Elmer
Doerner after they were divorced./4 She
boasts, without the backing of any
Indiana case law to support her
assertion, "it is not entirely clear that
as a matter of common law that Indiana
would necessarily insist on a fully valid
civil marriage as an absolute
prerequisite to a loss of consortium
claim." Quite the contrary. Indiana
courts have defined consortium as the
"conjugal fellowship of husband and wife,
and the right of each to the company,
cooperation, affection, and aid of the
other in every conjugal relation." Bemis
Co. v. Rubush, 401 N.E.2d 48, 63 (Ind.
Ct. App. 1980) (quoting Black’s Law
Dictionary 712 (rev. 4th ed. 1968)),
vacated on other grounds, 427 N.E.2d 1058
(Ind. 1981). A claim for loss of
consortium thus grows out of the marital
relationship, and is extinguished upon
divorce. Planned Parenthood of Northwest
Ind., Inc. v. Vines, 543 N.E.2d 654, 657
(Ind. App. Ct. 1989). Indiana courts
repeatedly have reserved the right to
maintain a loss of consortium claim for
those who have a valid civil marriage at
the time the injury arises. Troue v.
Marker, 252 N.E.2d 800, 805 (Ind. 1969);
Greene v. Westinghouse Elec. Corp., 573
N.E.2d 452, 454-55 (Ind. App. Ct. 1991);
Planned Parenthood of Northwest Ind.,
Inc., 543 N.E.2d at 657. Under Indiana
law, Doerner’s right to consortium
terminated in 1991, at the time the state
granted her divorce from the decedent.
Elmer Doerner did not become ill until
1995, some four years after the
dissolution of the Doerners’ marriage
contract in the eyes of the State of
Indiana. The district court properly
granted Swisher’s motion for summary
judgment on Doerner’s loss of consortium
claim because the Doerners were not
legally married during the span of time
of Elmer Doerner’s illness.

  Doerner next argues that the district
court erred in requiring that she
establish that she suffered a "physical
harm" to support her emotional distress
claim. Doerner’s second argument is
equally without merit. Doerner relies on
Groves v. Taylor, 729 N.E.2d 569, 572
(Ind. 2000), to support her notion that
the IPLA does not require a plaintiff to
show of "physical harm." But Groves
involved a common law tort claim, not a
claim under the IPLA. The plain language
of the IPLA requires that Doerner
establish that she suffered a "physical
harm caused by a product," regardless
whether Indiana common law would have
required her to do so. Ind. Code sec. 34-
20-1-1. "Mental distress" does not
qualify as a "physical harm" under the
IPLA, and we hold that the trial court’s
action in dismissing Doerner’s claim
based on emotional distress was proper.

III.   Conclusion

  Doerner’s arguments are without merit.
Despite her speculation to the contrary,
Indiana law reserves loss of consortium
claims only for husbands and wives who
are joined in a valid civil marriage
contract at the time of the injury but
does not allow recovery in loss of
consortium for the loss an ex-spouse.
Doerner never established that she
suffered a "physical harm," as required
by the IPLA, and her argument to avoid
the plain language of the IPLA is equally
without foundation. The trial court’s
actions in dismissing Doerner’s claims
were proper.

AFFIRMED.

FOOTNOTES

/1 The record does not disclose the reasons for the
Doerners’ divorce. Neither does the record dis-
close why the Doerners chose to continue to live
together after they divorced, nor why they never
sought an annulment.

/2 Swisher promptly removed the case to the United
States District Court for the Southern District
of Indiana. Federal jurisdiction is based upon
the diversity of the parties, 28 U.S.C. sec.
1332(a)(1). Doerner is a citizen of Indiana.
Swisher is a Delaware corporation with its prin-
cipal place of business in Connecticut. The
amount in controversy exceeds $75,000.

/3 We note that Doerner briefly argues that "loss of
services" would appear to be a much broader term
than "loss of consortium," because loss of ser-
vices includes other services beyond the love and
affection associated with loss of consortium.
Doerner is in error. Indiana courts have consis-
tently ruled that "consortium does not consist
alone of intangible mental and emotional ele-
ments, but embraces within its ambit also servic-
es and charges which one partner in the marriage
performs for the other and have a monetary and
pecuniary value." See Troue v. Marker, 252 N.E.2d
800, 805 (Ind. 1969); see also Forte v. Conner-
wood Healthcare, Inc., 745 N.E.2d 796, 801 n.8
(Ind. 2001); Greene v. Westinghouse Elec. Corp.,
573 N.E.2d 452, 454-55 (Ind. App. Ct. 1991). In
any event, Doerner’s complaint alleged a loss of
consortium, not a loss of services.

/4 Interestingly, Doerner never alleged that she at
any time suffered "physical harm" in the form of
inhalation of second-hand smoke.
