Robert G. McCoy
Mark R. Penney
Attorney for Amicus Curiae
W. Russell Sipes
Attorney for the Indiana Trial Lawyers AssociationAttorneys for Appellee
Thomas S. Ehrhardt
Garrett V. Conover
Crown Point, IN
Attorney for WTI Rust Holdings, Inc.
Christopher D. Lee
Todd C. Barsumian
Attorneys for Combustion Engineering, Inc. and Mallinckrodt Group, Inc.
Susan E. Mehringer
Lisa M. Dillman
Attorneys for A.C.&S., Inc.
Attorneys for North American Refractories
Terre Haute, IN
Attorneys for Prox Co., Inc.
Attorney for Weil-McLain Co.
) ) ) ) ) ) ) )
Appellants (Plaintiffs below),
A.C.&S., INC., NORTH AMERICAN REFRACTORIES, MALLINCKRODT GROUP, INC., COMBUSTION ENGINEERING CO., KAISER ALUMINUM
& CHEMICAL CORP., WTI RUST HOLDINGS, INC., RAPID-AMERICAN CORP., WEIL-McLAIN CO.,
W.R. GRACE & CO-CONN,
Appellees (Defendants below).
) Supreme Court No.
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffery J. Dywan, Judge
Cause Nos. 45D01-9812-CT-992, 45D01-9609-CT-896
March 25, 2003
Willie J. Harris, Jr., was employed at Inland Steel from 1960 until he
retired in 1993. During his employment, Mr. Harris was exposed to asbestos.
On June 15, 1996, Mr. Harris was diagnosed with asbestosis. On
September 16, 1996, Mr. Harris filed a complaint alleging, among other things, that
his asbestosis was proximately caused by his exposure to asbestos fibers and/or asbestos-containing
products during his employment.
Louis Serna was employed at Inland Steel from 1942 to 1985. During
the course of his employment, Mr. Serna was exposed to asbestos. On
March 18, 1998, Mr. Serna was diagnosed with malignant mesothelioma, and was notified
of this diagnosis in April 1998. On December 12, 1998, Mr. Serna
and his wife, Esther Serna, filed a complaint alleging, among other things, that
Mr. Sernas condition was proximately caused by unreasonably dangerous asbestos fibers manufactured, supplied,
or installed by the Defendants.
Robert Noppert was employed as a plumber and pipe-fitter for various employers from
1959 to 1980. During this period, Mr. Noppert was exposed to asbestos.
In February 1991, Mr. Noppert was diagnosed with asbestosis. On April
25, 1995, Mr. Noppert and his wife, Freda Noppert, filed a complaint alleging,
among other things, that Mr. Nopperts asbestosis was proximately caused by his exposure
to the asbestos-containing products sold by the Defendants. Subsequently, in January 1996,
Mr. Noppert was diagnosed with malignant mesothelioma. Mr. Noppert died on May
John Gottschalk was a construction worker from 1957 to 1996. During the
course of his employment, he both worked with asbestos personally and worked in
close proximity to others who mixed asbestos. On March 11, 1996, Mr.
Gottschalk was diagnosed with malignant mesothelioma. He died on October 22, 1996.
On January 2, 1997, Caroline Gottschalk, John Gottschalks wife, filed a complaint
on behalf of herself and her husband alleging, among other things, that Mr.
Gottschalks mesothelioma, and ultimate death, was proximately caused by his exposure to asbestos-containing
products provided by the Defendants.
The Indiana General Assembly has enacted two statutes that limit the period of time within which individuals can file product liability claims. One of these statutes, Ind. Code § 34-20-3-1, generally applies to product liability claims and establishes a ten-year period of repose; we will refer to this statute as Section 1. The second statute, Ind. Code § 34-20-3-2, specifically applies to certain asbestos liability claims; we will refer to this section 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, respectively.)
In each of these cases, the Defendants argue that Section 2 only applies
to a limited class of defendants and that they do not fall within
that class. As such, Defendants contend that the Plaintiffs must proceed against
them under the more time restrictive Section 1. The Plaintiffs respond that
even if they are not permitted to proceed against the respective Defendants under
Section 2, Section 1 is unconstitutional under both art. I, § 12, and
art. I, § 23 of the Indiana Constitution.
The trial court, in each of the cases, agreed with the Defendants that
Section 2 did not apply to them and that the Section 1 statute
of repose had expired prior to the accrual of the Plaintiffs claims.
In the consolidated appeal, the Court of Appeals found that under Section 2,
the Defendants need not have both mined and sold commercial asbestos. Harris
v. A.C. & S., Inc., 766 N.E.2d 383 (Ind. Ct. App. 2002).
It then reversed the summary judgment award and found that Section 2 applied
to the Defendants in each of the cases.
We hold today in AlliedSignal v. Ott, No. 02S04-0111-CV-599 (Ind. Mar. 25, 2003), that the Legislature consciously intended to subject to Section 2 only those entities that produce raw asbestos, while leaving those who sell asbestos-containing products within the ambit of Section 1. We also hold that the statutory scheme does not violate either art. I, § 12 or art. I, § 23, except in the limited circumstance where 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.
Our reasoning in that case applies here, and we reach the same result:
since the ev
idence did not demonstrate that any of the Defendants both
mined and sold commercial asbestos, Section 2 did not apply. Since the
Plaintiffs claims do not fall under Section 2, the general ten-year statute of
repose found in Section 1 applies. Given that the Plaintiffs claims were
filed after the expiration of the period of repose, summary judgment for the
Defendants was proper unless a reasonably experienced physician could have diagnosed a given
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. We direct the trial court to
examine this possibility on remand.
Asbestos-related cancer does not manifest itself until ten to twenty-five years after exposure.
I believe that the General Assembly, for reasons of compassion, fairness, and
justice enacted Indiana Code § 34-20-3-2 to provide relief for all asbestos victims
from the general ten-year statute of repose in the Indiana Product Liability Act.
Consistent with this legislative intent, I believe that the phrase "persons who
mined and sold" means "persons who mined and persons who sold" and that
"commercial asbestos" includes not only raw asbestos but also asbestos in commercial products.
I further believe that, under the majority's restrictive construction of this section,
application of the product liability statute of repose to the plaintiffs' claims violates
both Section 12 and Section 23 of Art
icle 1 of the Indiana Constitution.
My reasons are detailed in Allied Signal, Inc. v. Ott, ___ N.E.2d
___ (Ind. 2003) (Dickson, J., dissenting).
RUCKER, J., concurs.