Indiana Supreme Court Invalidates 10-Year Statute of Repose in Asbestos Cases
Staring Down Stare Decisis in Indiana Asbestos Litigation
An Indiana Supreme Court case handed down on March 2, 2016 has invalidated the Indiana Product Liability Act’s 10-year statute of repose as it applies to asbestos claims, attached here in PDF
. Product liability defendants in asbestos cases will now be unable to rely on the 10-year statute of repose. This decision may well lead to an increase in the filing of asbestos lawsuits in Indiana.
On March 2, 2016 the Indiana Supreme Court decided a case involving the Indiana Products Liability Act statute of repose in the Myers, et al. cases. The Court found that the 10-year statute of repose for asbestos claims violates the Indiana Constitution, specifically Article 1, Section 23—the Equal Privileges and Immunities Clause. In its 3-to-2 decision, the majority held that the statute of repose draws “an impermissible distinction between asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category.”
Previously, in AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003), the Court interpreted Indiana’s Product Liability Act as it applies to asbestos plaintiffs and found that Section 1 (containing the statute of repose) applied to those claims against defendants who sold asbestos-containing products, while Section 2 (containing no statute of repose) applied only to claims against defendants who both mined and sold raw asbestos. In its holding in Ott, the Court specifically rejected plaintiff’s claim that Section 2 violated the Equal Privileges and Immunities Clause of the Indiana Constitution by distinguishing between asbestos and non-asbestos victims. At issue in the three cases before the Court this year was whether Ott barred plaintiffs’ claims against various defendants, all of whom sold asbestos-containing products only.
Defendants (and amici curiae) argued that the principles of stare decisis and legislative acquiescence mandated that plaintiffs’ claims must fail under the prior ruling in Ott. The majority in in Myers, however, found that plaintiffs had raised a new constitutional challenge to Section 2: “Instead of comparing asbestos victims to non-asbestos victims, they compare two separate types of asbestos victims . . . asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category.” (Slip Op. at 5.) After performing an Equal Privileges and Immunities analysis, the majority determined that Section 2 created a disparate treatment between these two types of asbestos plaintiffs that was neither reasonably related to an inherent difference of the unequally treated classes, nor was the preference created uniformly applicable and equally available to all persons similarly situated. As such, the majority held that Section 2 violated the Equal Privileges and Immunities Clause of the Indiana Constitution, and invalidated it in its entirety.
Chief Justice Rush and Justice Massa authored sharp dissenting opinions. Both disagreed with the majority’s argument that plaintiffs’ constitutional arguments were “new,” citing the dissent in Ott which discussed precisely the same categories of asbestos victims that gave rise to plaintiffs’ challenge here. More importantly, though, both justices were concerned with the majority’s disregard of the principles of stare decisis and legislative acquiescence. Chief Justice Rush wrote that she “fear[ed] 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. As the Chief Justice and this Court’s newest member, I am particularly conscious of our changing composition, both in the recent past and in the near future. And in turn, I am particularly aware of what our actions imply when our narrowly divided Court reverses itself on an issue that, barely a decade ago, narrowly divided us in the opposite direction.”
Justice Massa lamented that this “unfortunate and disappointing reversal of precedent is neither warranted nor wise . . . .” He noted the Court’s new makeup, and the fact that the Ott dissent now had a third vote, which was “the very circumstance stare decisis exists to discourage.” To him, “the majority has engaged in stealth overruling, to the detriment of the public, confusing the law and eliminating transparency and predictability.” He highlighted the fact that Indiana law and courts have been “clear and predictable for litigants and for those doing business in Indiana.” The majority’s decision, Justice Massa predicted, “cannot be good for a state that has taken well-deserved pride in its efficient and just litigation climate.” He observed that Indiana ranked fourth in a 2010 study regarding how businesses perceive the fairness and reasonableness of state tort liability systems, and noted that our “reputation may be diminished by today’s hard turn.”
The Practical Effect Going Forward—No Statute of Repose for Asbestos Cases
Because the statute of repose in Section 2 is no longer valid, all asbestos plaintiffs now fall under the umbrella of Section 1. The Court here went on to resuscitate its prior decision in Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), which had been overruled in relevant part by Ott, to outline the applicable procedure going forward. Under Covalt, “a plaintiff may bring suit within two years after discovering a disease and its cause, notwithstanding that the discovery was made more than ten years after the last exposure to the product that caused injury.” Id. at 384. Specifically, the statute of repose does not apply to “cases involving protracted exposure to an inherently dangerous foreign substance,” such as asbestos. Id. at 385.
In the short term, this of course means that product liability defendants in asbestos cases will be unable to rely on the 10-year statute of repose. This litigation climate change in Indiana may result in an increase in the filing of asbestos lawsuits in the Hoosier state.
Watch This Space
There is currently another asbestos case working its way through the appellate courts of Indiana, this one dealing with premises liability claims. At issue is the duty of a land owner to the employees of independent contractors, as well as the principles of vicarious liability and respondeat superior. The case is full briefed with the Indiana Court of Appeals, and we expect a decision in the coming months. Once the decision is issued, it may be appealed by seeking transfer of the matter to the Indiana Supreme Court. We will keep you posted on further developments.
Attorney Contact: Kevin R. Knight, a 2016 Indiana Super Lawyer for PI – Products: Defense. Kevin.Knight@icemiller.com or 317-236-5828
Ice Miller's Asbestos Litigation Practice Group has developed significant experience in asbestos litigation, defending clients in these matters since the inception of asbestos litigation approximately thirty years ago. The Asbestos Team has been at the forefront of the laws, changes, rules, and technology of the Marion County Mass Tort Litigation - the hub of Indiana asbestos litigation. Over the years, Ice Miller has represented over 50 Defendants in Indiana and in other jurisdictions in what are often complex, multi-party matters, involving state, national and multi-national product manufacturers, distributors and premises owners.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.