Supreme Court says statute of repose does not apply in prolonged asbestos cases

The Indiana Supreme Court declared in a split decision Wednesday that the Indiana Product Liability Statute, and specifically its 10-year statute of repose, does not apply to cases where the plaintiffs have had protracted exposure to inherently dangerous foreign substances. 

Justices Brent Dickson, Steven David and Robert Rucker affirmed the lower court's decisions to deny summary judgment to defendants in Mary Geyman's case and reversed summary judgment granted to defendants in Larry and Loa Myers' case. Justice Mark Massa and Chief Justice Loretta Rush dissented in separate opinions. Dickson wrote the opinion for the majority.

The majority overturned its 2003 decision in Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003), claiming new ground that was missed at the trial court level, but Rush and Massa were not supportive of the decision. They claimed stare decisis meant Ott should not have been overturned. The majority claimed the new information meant they were not in violation of stare decisis doctrine.

The Supreme Court combined three appeals in its ruling, Larry Myers and Loa Myers v. Crouse-Hinds Division of Cooper Industries Inc. and Lorillard Tobacco Company and Hollingsworth & Vose, 49S00-1502-MI-119; General Electric Company. V. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman, 49S00-1501-MI-35; and Owens-Illinois Inc. v. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman, 49S00-1501-MI-36. Dickson said all three cases made essentially the same arguments. 

Larry and Loa Myers, and Raymond and Mary Geyman brought suit alleging damages from asbestos-related diseases.

The court considered two challenges. The first was whether the statute of repose provisions violate the Indiana Constitution’s Right to Remedy Clause in Article 1, Section 12; and second, whether they violate its Equal Privilege and Immunities Clause in Article 1, Section 23.

The plaintiffs argued section 2 of the Indiana Product Liability Act contained a constitutionally impermissible distinction between asbestos-plaintiffs injured by defendants who mined and sold raw asbestos and asbestos-plaintiffs who were injured by defendants not in that category. The majority agreed, saying section 2 allowed plaintiffs who were injured by defendants who mined and sold raw asbestos to sue under a section where they had no statute of repose, but people injured by asbestos in other categories had to sue under section 1, where there was a statute of repose. That violates the Equal Privilege and Immunities Clause in Article 1, Section 23.

Because section 2 of the IPLA was invalidated in the instant matter, the plaintiffs’ claims were decided based on section 1, which was interpreted in Covalt v. Carey Canada Inc., 543 N.E.2d 382 (Ind. 1989). In that case, the court wrote “our statute of repose is inapplicable to cases involving protracted exposure to an inherently dangerous foreign substance which is visited into the body.”

The plaintiffs in both cases had prolonged exposure to asbestos, one working for 40 years as an electrician, the other for 24 years as a worker and welder. Because of that, the majority found the plaintiffs’ claims of asbestos damage under the IPLA could proceed.

Rush dissented based on stare decisis. She said reversing Ott, a decision from only 12 years ago, sets a dangerous precedent.

“Despite my own ambivalence about Ott, I cannot say it is so clearly wrong or unjust to warrant upending an issue we have already settled,” Rush wrote. Later, she wrote, “I fear the Court’s change of heart sets into motion a pendulum that will swing long into the future – not because I expect we will actually reverse other close or controversial decisions, but because that is the inevitable perception.”

Massa wrote he agreed with most of Rush’s dissent, but he believed the decision could inflict even more serious damage than Rush said. He wrote the majority tried to get around stare decisis by finding a new claim and theory overlooked in its previous decisions, but that theory fails. He said under the asbestos exception in the statute of repose, everyone injured by it is in the same class, and fits into both categories.

Massa said nothing has changed except the makeup of the court, and that should not be enough to change the decision, even though the majority claims new ground. However, Massa claimed those grounds were rejected in the minority opinion in the Ott case, which was also written by Dickson.