Divided justices deny rehearing asbestos statute of repose case

The Indiana Supreme Court issued an order declining to rehear a case that ended the statute of repose on prolonged asbestos cases by a 3-2 vote Thursday, with the same justices who voted to end the statute of repose voting against the rehearing.

The court combined three appeals in its original ruling, which said section 2 of the Indiana Product Liability Act contained a constitutionally impermissible distinction between asbestos plaintiffs who mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants not in that category. Justices Brent Dickson, Steven David and Robert Rucker voted against the rehearing, just as they voted to amend IPLA and strike section 2.

David wrote a one-page opinion affirming the decision in which Dickson and Rucker concurred. Justice Mark Massa wrote a six-page decision dissenting from the denial of rehearing, in which Chief Justice Loretta Rush concurred.

In his dissent, Massa wrote that because the Indiana attorney general was not notified in the case, it should be remanded to the trial court so he can participate. He cited Sendak v. Denbro, a case from 1976  in which the attorney general was not served in a case challenging the constitutionality of a state statute. The court there remanded the case to the trial court because serving the attorney general helps the will of the people be heard in decisions that threaten statutes, and ruled all cases that threaten statutes should have the attorney general notified.

Massa also wrote on the merits of the case, which hinged on stare decisis and whether the Supreme Court had covered the same ground in Allied Signal v Ott from 2003, “although the majority went to such great pains to say it was not ignoring precedent, in so doing, it has given us a new framework that will prove difficult to apply.”

Later he wrote, “If distinguishing between asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category is constitutionally impermissible, many other classifications the legislature has deemed appropriate can and will be challenged. The costs of massaging classifications for a desired result will soon multiply.”

David replied to Massa’s opinion by writing the attorney general did participate in the decision by briefing the matter in an amicus brief and had not asked for rehearing. David cited M&M Investment Group LLC v Ahlemeyer Farms Inc. 994N.E.2d1108, 1112 (Ind. 2013)  in which the Supreme Court upheld a decision that was challenged because the attorney general was not served, but did write an amicus brief.

“We can address the constitutional issue as a matter of law,” David said.