Ruling ends statute of repose for some asbestos cases

The Indiana Supreme Court’s ruling that the statute of repose does not apply in prolonged asbestos cases could open the door for more cases to be filed, two Indianapolis attorneys said. However, they were split if the decision was the right one.

A divided Indiana Supreme Court ruled March 3 in three combined cases that Section 2 of the Indiana Product Liability Act’s Chapter 3 contained a constitutionally impermissible distinction between asbestos-plaintiffs injured by defendants who mined and sold raw asbestos versus plaintiffs who were injured by defendants not in that category. As such, Section 2 was struck.

Justices Brent Dickson, Steven David and Robert Rucker formed the majority in the decision while Chief Justice Loretta Rush and Justice Mark Massa dissented in separate opinions. Both of their dissents centered on the doctrine of stare decisis, believing the 2003 case Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003), prevented ruling on the recent cases. The majority claimed these cases brought up new ground, but Rush and Massa did not think so.

Massa said under the asbestos exception in the statute of repose, everyone injured by it is in the same class and fits into both categories.

Knight

Kevin Knight, a partner at Ice Miller LLP who specializes in product liability cases, agreed with Massa that people fit into both categories.

“Massa made a compelling point in his dissent with the issue having been raised and addressed in the Ott decision,” Knight said. “Miners were named in cases as well as product defendants and there really was no disparate treatment, people sued both miners and manufacturers.”

Knight said he thought there was a potential for something like this to occur with three new justices on the bench after the Ott decision was handed down.

“If Dickson had determined the issue had been raised in an earlier decision, we wouldn’t be having this discussion and Ott would have been determined to rule,” Knight said. Dickson wrote the dissent in the Ott case.

Knight said the ruling is great news for those who have been affected by asbestos, however, because it’s now easier to file a claim for injury.

“It removes an obstacle to potential recovery,” Knight said. “That was a pretty significant defense, a complete bar to any and all causes of action. It improves plaintiffs’ chances of recovering at trial or in settlement negotiations.”

Farinas

Kathy Farinas, a partner at George & Farinas, a firm that specializes in asbestos-related cases and worked on the Supreme Court case, believed the case was “a just result for clients” and for plaintiffs it’s “a landfall victory.”

“This puts the rights of asbestos victims back in line with the rest of the country,” she said. “Illinois, Michigan, Kentucky, it gives them the same rights for the same types of injuries.”

Farinas said she had clients who worked on the state border who were not able to sue for injury because they lived in Indiana, where the people five miles away were able to.

“There’s something fundamentally wrong with that,” Farinas said.

She agreed with the court’s majority that Section 2 was unconstitutional, and thought the court interpreted the statute correctly. Even Rush’s dissent wasn’t necessarily on the issue of the case, but more on procedural grounds, she said.

Both attorneys said they were not sure whether the ruling would lead to an increase in filings.

“That remains to be seen,” Farinas said. “What this does is allow people to seek their rights and pursue their rights in Indiana. We’re not giving them a victory; it allows them to present their issues before a jury. It’s not saying they’re going to win their case, but it allows them to play out the process and for a court to decide on the merits of the case.”

Knight said this could mean increased filings not only from within Indiana, but from other states after regulations just got friendlier to potential plaintiffs here.

“There will be a lot of contractors invited to the party,” Knight said.

Christopher Wahl of Hill Fulwider P.C., who was an attorney for appellant General Electric Co. in the combined case, thinks the ruling has far reaching consequences beyond asbestos cases.

“The way I read it, the statute of repose in any cases of latent disease and protracted exposure to foreign substances” has been lifted, he said. “Other parts of the industry, people that have been exposed to benzine or petroleum could also be included in this.”

But Knight also said while companies can still use products with asbestos in their buildings, the practice is going away.

“The industry has been very good about ceasing installation of new asbestos and taking proper steps to properly abate and remediate the situation,” Knight said. “There haven’t been as many true asbestos-related cases as exposure has wound down, and it’s reasonable to assume there won’t be as many mesothelioma (cases) at least in the future.”•