Indiana Asbestos Exposure Repose Law Unconstitutional

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By Steven M.Sellers

March 3 — A provision of Indiana's product liability act that extinguishes certain asbestos-related disease claims after 10 years is unconstitutional because it treats similarly situated asbestos exposure plaintiffs differently, the Indiana Supreme Court ruled Mar. 2.

The repose law—which permits suits against defendants who both mined and sold raw asbestos, but sets a 10-year limit for claims against those who didn't engage in both activities—violates the equal privileges and immunities clause of the Indiana Constitution, the court said in a split decision involving three consolidated appeals.

‘Impending Flood' of Case Filings?

The ruling permits Larry Myers and the survivor of Raymond Geyman to pursue tort claims against various companies—including Crouse-Hinds Division of Cooper Industries, Inc., General Electric Co. and Owens-Illinois, Inc.—for illnesses allegedly caused by exposures that occurred decades ago.

“The decision brings the rights of those injured by asbestos in Indiana in line with the rights available to asbestos victims around the country,” according to attorney Kathleen Farinas of George & Farinas in Indianapolis, who represented Myers and Geyman.

“Based on our reading, it would be logical to apply the holding to other similar products that cause latent injuries and death based on the court’s analysis,” Farinas said in a Mar. 3 e-mail.

Michael Martinez of Matushek, Nilles & Sinars in Chicago, who represented Crouse-Hinds in the litigation, told Bloomberg BNA Mar. 3, “the decision essentially reopens Indiana trial courts to an impending flood of asbestos case filings.”

But Christopher Wahl of Hill Fulwider's Indianapolis office, who represented General Electric Co., said that while more cases were possible, it “remains to be seen” how the decision will affect asbestos litigation.

Differing Standards, Similar Claims

The cases involve the interrelation of two sections of Indiana’s product liability and asbestos product liability laws, each specifying different time limits within which asbestos exposure claims must be filed.

Section 1 of Indiana Code 34-20-3-1, the state’s general product liability statute, specifies a two-year discovery statute of limitations and a statute of repose that limits claims to those brought within 10 years of delivery of the product to a consumer.

Section 2 of the asbestos products liability law, Indiana Code 34-20-3-2(a)(2), governs personal injury claims arising from asbestos exposure, omits the 10-year repose limitation and “applies only to product liability actions against persons who mined and sold commercial asbestos.”

Manufacturers in asbestos exposure actions have contended for years that Section 2, the repose-free provision, didn’t apply to them because they sold products but didn’t mine the asbestos within them.

That argument was based on the Indiana Supreme Court's 2003 decision in AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003), that Section 2 applies to persons who both mine and sold raw asbestos, while claims against product manufacturers are protected by the 10-year repose limitation of Section 1.

Ott was questioned 11 years later—setting up the appeals here—when the trial court in one of the consolidated cases adopted the theme of Ott's two dissenters.

The dissenters’ broader view, which would permit delayed asbestos exposure claims against producers of asbestos-containing products, better reflects the legislature’s intent, the Indiana Superior Court said in denying summary judgments to GE and Owens-Illinois.

Another superior court judge, however, took the opposite view in a subsequent suit brought by Myers, citing its obligation to follow Ott as a controlling precedent in granting a summary judgment to Crouse-Hinds.

Constitutional Change of Course

The state's high court declined to alter its interpretation of the product liability statute in Ott, but then went on to consider the “new” issue raised here: whether the law's disparate treatment of two types of asbestos victims was unconstitutional.

“Here, the two classes of asbestos victims are similarly situated (both are victims of asbestos illness or disease), yet only one of them (the class seeking damages from defendants who both mined and sold raw asbestos) is completely excepted from the statute of repose,” the court said in striking down Section 2 of the act.

Chief Justice Loretta H. Rush dissented, arguing that the majority opinion improperly disregarded as a binding precedent. Judge Mark S. Matta agreed, adding that the decision “has the potential to chip away at the rule of law and inflict more serious damage on our Court and state.”

Justice Brent E. Dickson wrote the majority opinion, joined by Justices Robert D. Rucker and Steven H. David. Justices Loretta H. Rush and Mark S. Massa dissented.

The law offices of George & Farinas represented Larry and Loa Myers, as well as Mary Geyman.

Cantrell, Strenski & Mehringer represented Owens-Illinois, Inc.

Hill Fulwider represented General Electric Co.

Matushek, Nilles & Sinars and Johnson & Bell represented Crouse-Hinds Division of Cooper Industries.

Hughes, Hubbard & Reed and Krieg DeVault represented R.J. Reynolds Tobacco Co. and Hollingsworth & Vose Co.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com