DTCI: Of stare decisis, dissents, and asbestos litigation

By Lonnie D. Johnson

Stare decisis /stériy dsáyss/. Lat. To abide by, or adhere to, decided cases. Policy of courts to stand by precedent and not to disturb a settled point.

Black’s Law Dictionary (10th Pl 2010).

Courts of last resort at both the state and federal levels rigidly adhere to stare decisis in order to promote the rule of law, foster confidence in the legal process, and effect the efficient administration of justice — or not. The Indiana Supreme Court’s recent opinion in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 2016 WL 825111 (Ind. 2016), completes a trilogy of Supreme Court cases going back to 1989 in which the high court has grappled with the stubborn issue of squaring the mandates of the Indiana Constitution with the Indiana Product Liability Act (IPLA), Ind. Code § 34-20-3-1, in asbestos personal injury cases. See Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), overruled by AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003); Myers v. Crouse-Hinds, 2016 WL 825111. This article examines the role stare decisis played in deciding this issue.

A. Statute of repose issue in asbestos cases

Personal injury actions arising from allegedly defective products must be brought within 10 years of the date the product was first placed into the stream of commerce or be barred by IPLA’s statute of repose. Injuries arising from asbestos exposure, however, do not present as symptomatic, manifest, clinically diagnosable injuries until several decades after exposure. Based on this medical science, the Supreme Court in Covalt held that Indiana’s statute of repose was inapplicable in actions where plaintiffs’ injury is a disease subject to a long latency period and contracted as a result of protracted exposure to a substance.

After Covalt was decided, IPLA was amended to include a section specifically addressing asbestos personal injury cases. Section 1 of IPLA applies to product actions in general and provides a statute of repose barring any claim not filed within 10 years of delivery of the product to the initial user. I.C. § 34-20-3-1. Section 2, which governs “asbestos-related actions,” eliminates the statute of repose in asbestos actions but only as to “product liability actions against persons who mined and sold commercial asbestos.”

Over the years, defendants argued that this defining language includes only defendants that both mined and sold asbestos in bulk commercial form, and that companies that merely incorporated asbestos into their products may invoke the 10-year statute of repose. The Indiana Court of Appeals consistently rejected this argument. See, e.g., Harris v. AC&S Inc., 766 N.E.2d 383 (Ind. Ct. App. 2002); Black v. AC&S Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001). In Ott, however, the Indiana Supreme Court held that as a matter of statutory construction, Section 2 applies only to miners of commercial asbestos, and product manufacturers that simply incorporated asbestos may invoke the general 10-year statute of repose.

Thirteen years later, in March 2016, the Myers court either overruled or distinguished Ott into Indiana’s judicial trash bin — depending on one’s perspective on stare decisis. In doing so, Myers provides an excellent prism through which to explore stare decisis.

B. Stare decisis as doctrine

It must first be emphasized that stare decisis matters only when a case is upheld to avoid, or despite, the merits; otherwise, the subsequent court merely cites approvingly the prior decision in support of its disposition on the merits. The force of the doctrine thus “lies in its propensity to perpetuate what was initially judicial error or to block reconsideration of what was at least arguably judicial error.” Richard H. Fallon, Jr., “Stare Decisis and the Constitution: An Essay on Constitutional Methodology,” 76 N.Y.U. L. Rev. 570, 570 (2001). By way of example, the United States Supreme Court has reaffirmed such landmark decisions as Roe v. Wade, 410 U.S. 113 (1973), and Miranda v. Arizona, 384 U.S. 436 (1966), as an application of stare decisis rather than an endorsement of the original opinion’s correctness on the merits. Traditional jurisprudence views stare decisis as part and parcel of constitutional law, with roots firmly planted in Alexander Hamilton’s admonishment in Federalist No. 78: “To avoid any arbitrary discretion in the courts, it is indispensible that they should be bound by strict rules and precedents.” Alexander Hamilton, “The Federalist No. 78,” 399 (Bantam Books 1982).

But however exalted stare decisis might be as a general judicial doctrine, it is often paid homage right before being eviscerated in a specific case. The opinion of the United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), perfectly illustrates the balancing of stare decisis. The Payne court first eloquently hailed the importance of stare decisis, then flipped the switch with:

Nevertheless, when governing decisions are unworkable or badly reasoned, “this Court has never felt constrained to follow precedent.” Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision.” (Citations omitted.)

C. Stare decisis in Indiana

In the early years of Indiana’s statehood, the Indiana Supreme Court was dominated by jurists of the purist stare decisis ilk, or “apostles” as described by Judge Richard Posner, who tended to uphold all precedent to promote legitimacy of process and the rule of law, regardless of their thoughts on the merits. Indiana jurists, however, have followed a modern trend of withholding stare decisis’ protection in order to decide a case squarely on the merits. See, e.g., Ramirez v. Wilson, 901 N.E.2d 1 (Ind. Ct. App. 2009) (Riley, J., dissenting).

D. Stare decisis and Myers majority opinion

In dissent, Justice Mark Massa backhanded a compliment to the majority: “Today’s holding is clever.” Myers, 2016 WL 825111 at *2 (Massa, J., dissenting). The cleverness to which Justice Massa refers is the majority’s deft framing of the issues that allowed it to both invoke stare decisis to uphold Ott’s holding on statutory construction and also to essentially overturn Ott and restore Covalt as the reigning law.

Ott dealt with both statutory construction and constitutional interpretation. First, the Ott majority rejected plaintiff’s proffered meaning, as well as Justice Brent Dickson’s interpretation in dissent, of “persons who mined and sold commercial asbestos” as meaning “persons who mined asbestos and people who sold commercial asbestos,” which meaning would have abrogated the statute of repose. Second, having interpreted this language as applying only to mining companies, the Ott majority then addressed the constitutional challenge that naturally followed from this interpretation.

Plaintiffs alleged that this interpretation would violate the equal protection provisions of Article 1, Section 2 of the Indiana Constitution. The majority framed the classification to be scrutinized as a class consisting of victims injured by exposure to asbestos as opposed to a class of all product liability plaintiffs. The majority rejected this challenge by reasoning that plaintiffs injured by asbestos-containing products were not only granted the same privileges as plaintiffs injured by other products but were indeed afforded an additional benefit, as they received an exemption from the statute of repose, at least as to companies that mined asbestos.

The Myers majority began its review of Ott by stressing the importance of applying stare decisis, citing approvingly the precedent and then holding: “We decline to alter Ott’s holdings with respect to statutory construction, finding it settled under our doctrine of stare decisis and legislative acquiescence.” Id. at *4. The Myers majority then took up the constitutional challenge to the statute under the disparate treatment test of Collins v. Day, 644 N.E.2d 72 (Ind. 1994), but defined the two classes differently from Ott: those plaintiffs injured by raw asbestos sold by companies who mined it, and those plaintiffs injured by the products of defendants who merely incorporated asbestos into their product. Relying on this classification, the majority easily determined that section 2 of the IPLA could not pass constitutional muster under the Collins test, as there are no “inherent differences that distinguish the unequally-treated class,” with both classes being “identically comprised of asbestos victims.”

Therefore, from the Myers majority’s point of view, it was able to apply stare decisis in upholding Ott while distinguishing it.

E. Chief Justice Rush’s dissenting opinion

Chief Justice Loretta Rush can perhaps be considered one of the stare decisis apostles. The chief justice’s dissenting opinion is direct and forthcoming in a way that illustrates the essential purpose, meaning, and application of stare decisis. First, Chief Justice Rush notes her “disagreement with the majority opinion rests entirely on stare decisis.” Myers, 2016 WL 825111 at *6 (Rush, C.J., dissenting). Her dissent is carefully crafted to maximize the purist approach to stare decisis. To purists, stare decisis is based on the rule of law, the predictable development of legal principles, and the actual and perceived integrity of the judicial process. Randy J. Kozel, “Stare Decisis as Judicial Doctrine,” 67 Wash. & Lee L. Rev. 411, 413 (2010). Accordingly, stare decisis reaches its zenith as a legal doctrine when applied steadfastly to uphold cases the jurists heartedly disagree with on the merits.

Chief Justice Rush underscored her reliance on stare decisis. Her dissent falls just short of declaring that she would have decided Ott differently and makes clear her belief that Justice Dickson’s dissent in Ott is the better reasoned position. Her dissent then notes that the plaintiffs’ “constitutional argument here is not ‘new,’” and that, “[p]recisely the same view failed to garner a majority in Ott, despite being ably advanced in the dissent” by Chief Justice Dickson. Myers, 2016 WL 825111 at *6 (Rush, C.J., dissenting). Our chief justice next acknowledges but rejects the “manifestly incorrect” exception to stare decisis: “despite my ambivalence about Ott, I cannot say it is so clearly wrong or unjust to warrant upending an issue we have already decided — when nothing has changed since 2003 but a third vote for the opposing view.” Id. at *7 (Rush, C.J., dissenting).

Chief Justice Rush ends her dissenting opinion with an eloquent, poignant plea in support of stare decisis as a means of legitimizing legal process, which will certainly be quoted by courts and academics for years to come:

“The judicial authority is a fragile thing. The executive branch has the power of police; the general assembly has the power of the purse strings; but our court has only the power of persuasion. Efficacy therefore depends wholly on the rule of law — which is just another name for the respect we earned by showing stability and consistency in our judgments and integrity in our processes.”

Id. (Rush, C.J., dissenting).

F. Justice Massa’s dissenting opinion

Justice Massa’s separate dissent in making his case for rigid application of stare decisis is bold and every bit as clever as what he charges the majority opinion being, while promoting the principle of reliance as a fundamental doctrine of Indiana jurisprudence. To this end, Justice Massa launches a two-fold attack on the majority in his defense of Ott.

a. Justice Massa’s standard for applying stare decisis

The Myers majority avoided a head-on collision with Ott by noting that the classification system in Ott was one class consisting of plaintiffs injured by asbestos-containing products and another class of plaintiffs injured by all other products. See generally id. The majority then stresses, “in analyzing the Section 23 challenge, it is the disparate classification alleged by the challenger, not other classifications, that warrants review.” Id. at *3. The Myers majority then distinguishes Ott’s constitutional holding by considering only the disparate classification proffered by the Myers plaintiffs: two classes both consisting of victims of asbestos but with claims against different types of defendants.

But Justice Massa challenges this technique of distinction employed by the Ott majority. The difference between the majority opinion and Justice Massa’s dissent is stark: the majority takes the view that only the classification system specifically challenged by plaintiff can be considered in a stare decisis analysis. Justice Massa, on the other hand, takes the position that all classification systems raised by the prior constitutional challenge in Ott that were, or could have been, considered should be rolled into the stare decisis analysis in Myers; indeed, he shoots a sharp arrow at the majority by noting Justice Dickson’s dissent in Ott, which makes the very same constitutional argument advanced by the Myers plaintiffs and adopted by the majority.

Surprisingly, there is no established standard of review for determining whether the issues under consideration in a case at bar are the same as those “fairly considered” in the precedent being applied, but Justice Massa’s position that the classification system offered by Myers was considered in Ott in Justice Dickson’s lengthy dissent based on that very classification seems better reasoned and better supported by authority. See, e.g., Legler v. Pine, 45 N.E. 604 (Ind. 1896). (The allegation that certain issues were not presented in former decisions can hardly be admitted in view of the earnest and vigorous dissenting opinion in the case, and what the court has taken up for consideration is not always shown by what it has decided but, frankly, by what it has refused to decide.)

b. Justice Massa’s reliance on the Reliance Principle

To Justice Massa, the reliance principle is the preferred doctrinal support for stare decisis. The reliance principle requires a solid substantive foundation. To that end, Justice Massa approvingly reviews the substantive policy underpinning the statute of repose as set forth in Dague v. Piper, 418 N.E.2d 207 (Ind. 1981).

Next, Justice Massa articulates the reliance principle as the basis for application of stare decisis:

“Since Section 2’s enactment 18 years ago, the law in Indiana has been clear and predictable for litigants and those doing business in Indiana. Parties have organized their affairs and reliance on our settled law. Yet today we take a time machine back to 1989, to a case interpreting statute before it was amended.”

Those jurists who support the reliance principle as a support for stare decisis must identify consequences of detrimental reliance in support of stare decisis. Here, Justice Massa ends by pointing out that the detrimental reliance caused by not following Ott indeed has consequences:

“This cannot be good for a state that has taken well-deserved pride in efficient and just litigation climate; our ‘courts are not a barrier to economic development.’ Chief Justice Shepard, Indiana State of the Judiciary Address: On the Way to Something Better (Jan. 11, 2012). That reputation may be diminished by today’s hard turn.”

G. Conclusion

Intense review of nationwide case law reveals that courts do not often approach stare decisis with the marked integrity apparent in the Myers majority and dissenting opinions. Each opinion in this landmark case, although differently reasoned, offers valuable insight into the ways stare decisis affects judicial decision-making.•

Mr. Johnson is a partner in the Bloomington firm of Clendening Johnson & Bohrer and a former president of DTCI. The opinions expressed in the article are those of the author.