R. Troy Mulder
Janelle K. Linder
Indianapolis, IN
Attorneys for McCord Gasket Co.

Douglas King
James M. Boyers
Indianapolis, IN
Attorneys for Bondex International, Inc.

Donald Orzeske
Jennifer Blackwell
Indianapolis, IN
Attorney for Borg-Warner Corp.

Knight Anderson
Indianapolis, IN
A.W. Chesterton

Monika Talbot
Indianapolis, IN
Ford Motor Co.

Attorneys for Amici Curiae

Jon L. Williams
Indianapolis, IN
Janet E. Golup
Philadelphia, PA
Attorneys for Asbestos Corporation Limited and Bell Asbestos Mines, Ltd.

George T. Patton, Jr.
Stephanie F. Holtzlander
Bryan H. Babb
Indianapolis, IN
Attorneys for Indiana Legal Foundation

Michael R. Fruehwald
Andrew J. Detherage
Shelese Emmons
Indianapolis, IN
Attorneys for Indiana Manufacturers Association and Indiana Chamber of Commerce

Attorneys for Appellee

Neal Lewis
Orland, IN

Robert E. Paul
Philadelphia, PA

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SHIRLEY OTT,
Appellee (Plaintiff below).
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    The Indiana General Assembly has enacted two statutes that limit the period of time within which persons can file lawsuits alleging injuries caused by products. One of these statutes, Ind. Code § 34-20-3-1, generally applies to product liability claims; we will refer to this statute in this opinion as “Section 1.” The second statute, Ind. Code § 34-20-3-2, specifically applies to at least some asbestos liability claims; we will refer to it as “Section 2.” (We note that prior to recodification in 1998, Sections 1 and 2 appeared at Ind. Code § 33-1-1.5-5 and § 33-1-1.5-5.5, respectively.)

    This opinion will parse these sections in some detail. For purposes of this Background section, it is sufficient to say that Section 2 gives plaintiffs more leeway in filing claims than does Section 1. The Defendants in this case argue that Section 2 only applies to a limited class of defendants and that they are not within that class. As such, they contend, the Otts must proceed against them under the more restrictive Section 1. The Otts respond that Section 2 allows them to proceed against these Defendants and that if it does not, then Section 1 violates Indiana Constitution art. I, § 12, See footnote as applied to asbestos plaintiffs, and Section 2 violates art. I, § 23.See footnote

The trial court agreed with the Defendants that Section 2 did not apply to them but then agreed with the Otts that because it did not, Section 1 was unconstitutional.

Defendants then secured certification from the trial court of this interlocutory appeal. We held an extended oral argument on May 16, 2002.

    At the same time that this case was proceeding, four other cases raising the same constellation of issues were presented to us. Harris v. A. C. & S., Inc.,766 N.E.2d 383 (Ind. Ct. App. 2002); Jurich v. Garlock, Inc., 759 N.E.2d 1066 (Ind. Ct. App. 2001); Allied Signal, Inc. v. Herring, 757 N.E.2d 1030 (Ind. Ct. App. 2001); Black v. ACandS, Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001). In three of these cases, the respective panels of the Court of Appeals held that Section 2 applied to the defendants and so did not have to reach the constitutional issue. Harris, 766 N.E.2d at 391; Herring, 757 N.E.2d at 1035-37; Black, 752 N.E.2d at 154-55. In Jurich, the Court of Appeals panel found that Section 2 did not apply to the defendants but it found Section 1 unconstitutional. Jurich, 759 N.E.2d at 1070-74, 1077. In summary, the plaintiffs prevailed below in all five of these cases—in three on statutory grounds and in two on constitutional grounds.

    Finding that the trial court in this case and the Court of Appeals in Harris, Jurich, Herring, and Black incorrectly analyzed these issues at least in part, we have accepted jurisdiction in each. (We resolve Harris, See footnote Jurich, See footnote Herring, See footnote and Black See footnote in separate opinions today.)

[A] product liability action must be commenced:

    (1) within two (2) years after the cause of action accrues; or
    (2) within ten (10) years after the delivery of the product to the initial user or consumer.

However, if the cause of action accrues at least eight (8) years but less than ten (10) years after that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.

Section 1(b). Section 2 excepts certain asbestos-related actions from the operation of Section 1's ten-year statute of repose. A product liability action based on personal injury, disability, disease, or death resulting from exposure to asbestos may be commenced within two years after the action accrues, without regard to the ten-year statute of repose. Section 2(a). For purposes of this section, "accrual" is defined as the date when the injured person knows that he or she has an asbestos-related disease or injury. Section 2(b). The exception applies only to:

    (1) persons who mined and sold commercial asbestos; and
    (2) funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy proceedings, been created for the payment of asbestos related disease claims or asbestos related property damage claims.

Section 2(d).
    
    In summary, the Indiana legislature has outlined the specific time requirements for at least some asbestos-related negligence actions in Section 2, a section distinct from the statute of limitations and period of repose for all other product liability actions outlined in Section 1. While product liability actions under Section 1 have a two-year statute of limitations and a ten-year statute of repose, asbestos-related actions under Section 1 enjoy a different timetable. When a product liability action qualifies under Section 2, there is no firm statute of repose. Rather, a lawsuit must be commenced within two years “after the cause of action accrues,” which is defined as “the date when the injured person knows that the person has an asbestos related disease or injury.” Sections 2(a) & (b).

The crucial language for our purposes arises in Section 2(d)(1). There the Legislature provided that Section 2 only applies if the defendant is a “person[] who mined and sold commercial asbestos.” Defendants who do not fall within this classification are entitled to the protection offered by the ten-year statute of repose in Section 1. As such, Defendants argue vigorously that they are not “persons who mined and sold commercial asbestos”; the Otts argue that Defendants are.

When reviewing a statute, courts give effect and meaning to every word. Spaulding v. Int’l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990). This Court’s primary goal when construing the meaning of a statute is to determine the Legislature’s intent. Smith v. State, 675 N.E.2d 693, 696 (Ind. 1996), appeal after remand, 695 N.E.2d 909 (Ind. 1998) (citing Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995)). Given such deference to legislative intentions, an unambiguous statute is interpreted to mean what it plainly states, and its plain and obvious meaning may not be enlarged or restricted. Ind. Dep’t of State Rev. v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994).

First, they say that it is more likely that the Legislature meant the phrase to be read "persons who mined and persons who sold" than "persons who both mined and sold." This is in part because the latter reading renders the words "and sold" superfluous since it is unlikely that there are any entities that mine but do not sell asbestos.

    Second, the Otts argue that Section 2 was clearly enacted in recognition of the long latency period associated with asbestos-related illnesses. It is inconsistent with that recognition, they contend, to limit claims to the relatively few companies that both mine and sell asbestos, exempting all others that disseminate asbestos and asbestos-containing products into the marketplace.

Third, the Otts maintain that the Defendants' interpretation of “persons who mine and sell” cannot be harmonized with subsection (d)(2), quoted supra, that permits lawsuits initiated outside of the ten-year statute of repose to proceed against "funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy proceedings, been created for the payment of asbestos related disease claims or asbestos related property damage claims." The Otts argue that the Legislature could not have meant for viable companies that sold asbestos but did not mine it to be excluded from liability, but those same companies, if in bankruptcy with the funds described in section (d)(2), to be subject to claims.

    We will withhold resolution of this debate for the moment.

"Commercial" has been defined as "[o]f, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry." American Heritage College Dictionary 280 (3d ed. 2000). Jurich cites us to 40 C.F.R. § 61.141 to support her argument that "commercial asbestos" includes any asbestos-containing product. However, our reading of the entirety of this Environmental Protection Agency regulation leads us to the opposite conclusion. The regulation states that "[c]ommercial asbestos means any material containing asbestos that is extracted from ore and has value because of its asbestos content." Elsewhere, there are clear indications that the EPA considered "commercial asbestos" to be a bulk product separate from asbestos-containing products, for example: "Fabricating means any processing . . . of a manufactured product that contains commercial asbestos . . . ." Id. (emphasis added). Also, "[m]anufacturing means the combining of commercial asbestos . . . with any other material(s), including commercial asbestos, and the processing of this combination into a product. " Id. (emphasis added). Thus, we agree with Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1068 (Ind. Ct. App. 1999), trans. denied, to the extent that panel believed "commercial asbestos" did not refer to sellers of "products which contained some components composed of asbestos." Here, the defendants sold asbestos-containing products, not "commercial asbestos," which we conclude refers to either "raw" or processed asbestos that is incorporated into other products. The legislature did not intend [Section 2] to apply to these defendants.

Jurich, 759 N.E.2d at 1070-71. Accord Roberts, 1998 U.S. Dist. LEXIS 22635, at *11-12.

All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.

Ind. Const. art I, § 12. As discussed supra, Section 1 requires a product liability action to be commenced within ten years after the delivery of the product to the initial user or consumer. The trial court acknowledged that this ten-year “statute of repose” was constitutional on its face, see Dague v. Piper Aircraft Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 213 (1981); see also State v. Rendleman, 603 N.E.2d 1333, 1336-37 (Ind. 1992); but found it to be unconstitutional as applied to the Otts.

    In reaching its conclusion, the trial court found our decision in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), controlling. In Martin, we held that art. I, § 12,

preclude[s] the application of a two-year medical malpractice statute of limitations when a plaintiff has no meaningful opportunity to file an otherwise valid tort claim within the specified statutory period because, given the nature of the asserted malpractice and the resulting injury or medical condition, plaintiff is unable to discover that she has a cause of action. Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim.

711 N.E.2d at 1284. The trial court found Mr. Ott’s situation to be “virtually identical” to that at issue in Martin:

[A]sbestos caused cancer takes between ten (10) and twenty-five (25) years to manifest itself. Even with the utmost amount of diligence Mr. Ott would not have been able to meet the time restrictions of [Section 1]. No one would have. Just like Ms. Martin, Mr. Ott had an accrued claim, albeit unrecognizable, and was “in the position of having the claim but no practical means of asserting it.”

(Appellants’ App. at 113)(footnotes and citation omitted).

    We think that this analysis paints with too broad a brush. In Jurich, Judge Barnes begins with a framework for his art. I, § 12, analysis that we think is helpful here:

There are at least three contexts in which the statute of repose could be considered in this case. First, is the statute constitutional as applied to a plaintiff who is exposed to asbestos from and injured by a product more than ten years after that product's initial delivery? Second, is the statute constitutional as applied to a plaintiff who is injured by a product within ten years of its initial delivery, but who has neither knowledge of nor any ability to know of that injury until more than ten years have passed? Third, in the absence of evidence of the length of time between a product's initial delivery and an injury . . . , can the statute constitutionally be applied to a plaintiff who was injured by a product before [Section 1's] passage?

Jurich, 759 N.E.2d at 1071.

    We are constrained to observe that the trial court's analysis does not take into account the first of these three scenarios, i.e., where the first exposure to asbestos does not occur until more than ten years after the asbestos-containing product's initial delivery. We see nothing in the trial court's findings that indicate one way or the other when the plaintiff's first exposure to asbestos occurred relative to the asbestos-containing product's initial delivery. In the event that this period exceeded ten years, the relevant defendants would be protected by the statute of repose. Application of the statute of repose would be constitutional under art. I, § 12: the plaintiff would be in exactly the same position as the plaintiff injured in the plane crash in Dague or by the loader in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000), both cases where the statute of repose was upheld.

    We have a less definitive answer to the second of Judge Barnes's scenarios—where a plaintiff is injured by a product within ten years of its initial delivery, but who has neither knowledge of nor any ability to know of that injury until more than ten years have passed. We agree with the trial court and Judge Barnes that the rule of Martin v. Richey is implicated. But it is only implicated where the plaintiff’s cause of action has accrued within the ten-year period.

    Here it is difficult to reconcile science and law. On the one hand, injury for this purpose does not occur upon mere exposure to (or inhalation of) asbestos fibers. There is substantial authority on this point. See footnote On the other hand, we recognize that injury may well occur before the time that it is discovered. As Judge Barnes says, “the very point of” Martin v. Richey is that the constitution required access to courts where “she could not have known or discovered that she was the victim of malpractice within [the applicable] time frame.” Jurich, 759 N.E.2d at 1074 (emphasis in original).

    We hold that, with respect to asbestos claims under Section 1, a cause of action accrues at that point at which a physician who is reasonably experienced at making such diagnoses could have diagnosed the individual with an asbestos-related illness or disease. See e.g., Neubauer v. Owens-Corning Fiberglas Corp., 686 F.2d 570, 577 (7th Cir. 1982) (A “cause of action accrues when the asbestos-caused disease becomes diagnosable—e.g., provable by medical evidence in court.”). In this regard, we disapprove Judge Barnes's and the trial court’s formulations to the extent that they hold that a cause of action accrues when exposure to asbestos occurs even though a disease does not manifest itself until many years later. In our view, it is only when the disease has actually manifested itself (and therefore could be diagnosed by a reasonably experienced physician) that the cause of action accrues. Jurich, 759 N.E.2d at 1075. Thus, Martin is implicated only where a cause of action in fact accrues (i.e., a reasonably experienced physician could have diagnosed the plaintiff with an asbestos-related illness or disease) within the ten-year statute of repose, yet the potential plaintiff had no reason to know of the diagnosable condition until the ten-year period had expired.

    Based on the foregoing, the statutory scheme might be unconstitutional as applied to the plaintiff if a reasonably experienced physician could have diagnosed Jerome Ott with an asbestos-related illness or disease within the ten-year statute of repose, yet Ott had no reason to know of the diagnosable condition until the ten-year period had expired. We direct the trial court to examine this possibility on remand.

    This brings us to the third of Judge Barnes's scenarios—whether, in the absence of evidence of the length of time between a product's initial delivery and an injury, Section 1 can be constitutionally applied to a plaintiff who was injured by a product before Section 1's passage. Judge Barnes argues that such a plaintiff had a vested right to pursue such a claim that the Legislature could not take away.

    Justice Boehm’s plurality opinion in McIntosh discussed the power of the Legislature to abolish common law remedies. His opinion conclusively demonstrates, we believe, the Legislature’s power to do so and we will not repeat his analysis here. See McIntosh, 729 N.E.2d at 977-78. But Judge Barnes acknowledges this and makes a slightly different point. The “key distinction,” he says, is that the asbestos plaintiff in Jurich had “a vested right, not in a rule of common law in the abstract, like the McIntoshes, but because he had been injured by defendant's products at a time when Indiana courts recognized common law product liability actions without an equivalent to the later-enacted . . . statute of repose and thus without reference to the length of time a product had been in the stream of commerce.” Jurich, 759 N.E.2d at 1076.

    First, we point out that the statute of repose has been in effect since July 1, 1978. See 1978 Ind. Acts. 141, § 28. Even if Judge Barnes is correct, a cause of action would have to accrue (i.e., a reasonably experienced physician would have to have been able to diagnose an asbestos-related illness or disease) before July 1, 1978, for his distinction to make a difference.

    But, second, a plaintiff’s right to pursue such a claim may in some circumstances be subject to changes in common law or statute. For example, a plaintiff’s ability to assert products claims was expanded under the common law, see, e.g., Cornette v. Searjeant Metal Prods., Inc., 258 N.E.2d 652, 656 (Ind. Ct. App. 1970) (adopting Restatement of Torts (Second) § 402A), and we have held it within the purview of the Legislature to modify or abrogate that expansion. McIntosh, 729 N.E.2d at 977-78.

    Art. I, § 12, provides that “[a]ll courts shall be open; and every person, for injury done to him in his person, . . .shall have remedy by due course of law.” Section 1, as we have previously held, does not violate this provision. Furthermore, asbestos plaintiffs have additional remedies under Section 2 where they may pursue miners and sellers of commercial asbestos See footnote and asbestos bankruptcy funds without regard for Section 1’s statute of repose.See footnote Thus, even if an asbestos plaintiff’s claim would not accrue within the normal ten-year period of repose, courts remain open under Section 2.

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

In determining whether a statute complies with or violates this provision, we use the two prong test set out in Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). However, before we can determine whether the legislative classification is permissible under this test, we need to identify the legislative classification at issue. We think the constitutional claim here, reduced to its essentials, is that asbestos victims in Indiana are bound by the statute of repose governing product liability actions when suing particular categories of defendants but are not so constrained when suing others. Thus, the statute creates a distinction between asbestos victims and other victims under the product liability act.

While it is true that such a distinction is created, we find it unnecessary to determine whether the distinction is constitutionally permissible because the classification resulting from the distinction of which the plaintiffs complain, as we have seen, works in favor of asbestos plaintiffs. See footnote See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347-48, 56 S.Ct. 466, 483 (1936) (Brandeis, J., concurring) (“The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. . . . The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”). Asbestos plaintiffs are subject to the same statute of repose as other products liability claims with respect to all defendants other than persons who mine and sell commercial asbestos and certain bankruptcy funds. With respect to the latter two classes of defendants, asbestos plaintiffs are not subject to a statute of repose at all. To the extent there is any art. I, § 23 defect, asbestos plaintiffs do not suffer any cognizable harm.

Section 2 was adopted by the Legislature while Covalt was pending, i.e., Covalt was decided under prior law. Id. at 383 n.1. The rationale for the Covalt opinion was that the Court “[could not] say that the Legislature intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance.” Id. at 386. The adoption of Section 2 renders that analysis obsolete.

In addition, there are key factual differences between Covalt and the present case. Covalt involved a plaintiff who worked with raw asbestos. 543 N.E.2d at 383. We stated in Covalt that the applicability of the holding in that case was limited to “the precise factual pattern presented,” which involved exposure to raw asbestos fibers. Id. at 387. Thus, Covalt can be read as consistent with the effect of Section 2 in that it relieved asbestos plaintiffs from the statute of repose in a lawsuit against a supplier of commercial asbestos. To the extent that Covalt is inconsistent with today’s opinion, it is overruled.

    Having previously granted transfer pursuant to Indiana Appellate Rule 56(A), we now reverse the judgment of the trial court. We remand this matter to the trial court for further proceedings consistent with this opinion.

SHEPARD, C.J., and BOEHM, J., concur. DICKSON, J., dissents with separate opinion, in which RUCKER, J., concurs.

    I strongly disagree with the majority's decision to reverse the trial court's denial of summary judgment in this case. In particular, I believe that the majority is incorrect in: (1) limiting the statutory term "commercial asbestos" to mean only raw asbestos; (2) construing "mined and sold" contrary to legislative intent; (3) failing to find a violation of Article 1, Section 12, of the Indiana Constitution; (4) failing to find a violation of Article 1, Section 23, of the Indiana Constitution; and (5) overruling rather than following Covalt v. Carey Canada, Inc.

Id. at 154 (internal citation omitted). This analysis has since been noted with approval in Harris v. ACandS, Inc., 766 N.E.2d 383, 391 (Ind. Ct. App. 2002); Jurich, 759 N.E.2d at 1069-70; Herring, 757 N.E.2d at 1035; Fulk v. Allied Signal, Inc., 755 N.E.2d 1198, 1202 (Ind. Ct. App. 2001); Parks v. A.P. Green, Indus., Inc., 754 N.E.2d 1052, 1058 (Ind. Ct. App. 2001); and Poirier v. A.P. Green Services, Inc., 754 N.E.2d 1007, 1010 (Ind. Ct. App. 2001).
     In accord with Judge Mattingly-May’s analysis, I am convinced that the legislature intended "persons who mined and sold" to mean "persons who mined and persons who sold."

Appellants' App. p.113 (footnotes and citation omitted). Because of this long latency period, asbestos-caused cancer usually does not appear until after the ten-year statute of repose. This is precisely the circumstance that led this Court in Martin v. Richey to find that application of the medical malpractice two-year statute of limitations to the facts of that case violated Article 1, Section 12, because Martin had "no meaningful opportunity to file an otherwise valid tort claim within the specified statutory period." 711 N.E.2d 1273, 1284 (Ind. 1999). We stated:
[G]iven the nature of the asserted malpractice and the resulting injury or medical condition, plaintiff is unable to discover that she has a cause of action. Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim.

Id. As we explained in McIntosh v. Melroe Co., 729 N.E.2d 972, 979 (Ind. 2000), "[t]he holding in Martin v. Richey is that a claim that exists cannot be barred before it is knowable." Likewise here, Jerome Ott was diagnosed with lung cancer in 1998 and died in 2000. The plaintiff alleges that his lung cancer was caused by exposure to asbestos at his various places of employment from 1949 through 1983. Because of the unusually long latency period of asbestos-related cancer, it was impossible for Ott to discover that he had contracted a disease from exposure to asbestos within the statute of repose.
    The majority observes "nothing in the trial court's findings that indicate one way or the other when the plaintiff's first exposure to asbestos occurred relative to the asbestos-containing product's initial delivery." Maj. slip opin. at 14. This fact is irrelevant to our review of the denial of summary judgment. As the proponent of summary judgment, it was the defendant's burden to establish that the action was commenced in violation of the statutory limitation period. Burks v. Rushmore, 534 N.E.2d 1101, 1104 (Ind. 1989). To succeed on summary judgment, the defendants were required to demonstrate that there was no genuine issue as to any material fact and that Ott could have discovered that he had sustained an injury in time to comply with the statutory limitation period, as required by Martin. Even though this Court in McIntosh held that "products that produce no injury for ten years are no longer subject to claims under the Product Liability Act," 729 N.E.2d at 979, the defendants failed to demonstrate that the asbestos exposure produced no injury for over ten years. The defendants' failure of proof supports the denial of summary judgment.
     In its application of Martin, the majority today creates a new definition of “accrues” and declares that, "with respect to asbestos claims under Section 1, a cause of action accrues at that point at which a physician who is reasonably experienced at making such diagnoses could have diagnosed the individual with an asbestos-related illness or disease." Maj. slip opin. at 16. Because this omits consideration of when the injured person (as opposed to a hypothetical physician) becomes aware of his or her own injury, today's new definition of "accrues" is wholly contrary to existing law. "[A] cause of action accrues when the resultant damage of a negligent act is ascertainable or by due diligence could be ascertained . . . ." Burks, 534 N.E.2d at 1104 (quoting Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84, 86 (Ind. 1985)). The ascertainability of damage is determined "by evaluation of the nature and circumstances of the information known or reasonably discoverable by [the injured person], beginning at the initial point of his claimed harm." Id. at 1104. The legislature itself understands this to be the proper meaning of "accrues." Section 2 explains: "A product liability action for personal injury, disability, disease, or death resulting from exposure to asbestos accrues on the date when the injured person knows that the person has an asbestos related disease or injury." I.C. 34-20-3-2(b) (emphasis added).
Therefore, and contrary to the majority, Martin is clearly implicated when a person injured by exposure to asbestos did not, and could not by the exercise of due diligence, ascertain that he or she had been damaged by the asbestos, regardless of whether the condition hypothetically might have been diagnosed by a reasonably experienced physician within the ten-year statute of repose. Moreover, for the limitation period to bar the claim, it is a defendants' burden to establish a plaintiff's knowledge of the asbestos-related injury within the statutory period.
    For the reasons expressed in Martin and reaffirmed in McIntosh, the trial court did not err in finding the product liability statute of repose to violate Article 1, Section 12, as applied to the facts of this case.

Id. at 387.
The majority dismisses this holding on grounds that Covalt was decided under prior law because the language of Section 2, although then recently adopted, was not applicable to the facts there presented. We noted this fact in Covalt and described the effect of the amendment as providing "in pertinent part that an asbestos-related action must be brought within two years of the date when the injured person knows that he has an asbestos-related disease or injury." Id. at 383-84 n.1. The effect of Covalt was to determine the application of the statute of repose with respect to asbestos-related claims in a manner quite consistent with that implemented with the legislature's enactment of the ameliorative language of Section 2, allowing access to courts by persons with asbestos-related injuries.
The majority declares that the adoption of Section 2 renders Covalt's analysis "obsolete," Maj. slip opin. at 22, because Covalt expressly excluded Section 2 from its determination and noted its uncertainty regarding whether the legislature "intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance." Covalt, 543 N.E.2d at 386. The majority's analysis assumes that Section 2 represents the legislature's intent to bar all such claims except those against producers of raw asbestos. However, if Section 2 is read as the Covalt court understood it, to provide a humane, fair, and just exception from the statute of repose for all persons whose asbestos-related diseases cannot be ascertained within ten years after exposure, the existence of Section 2 in no way renders Covalt obsolete.