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IN SUP. CT. OVERTURNS LONG STANDING STATUTE OF REPOSE FOR ASBESTOS LITIGATION
Attached is a new Indiana Supreme Court decision, Myers v. Crouse-Hinds Division of Cooper Industries, Inc., et al., No. 49S00-1502-MI-119 Order.pdf (241 KB), which has now declared the Product Liability Act in violation of the Indiana Constitution. The court essentially consolidated three appeals involving the Indiana Product Liability Act statute of repose and each of those plaintiff’s request to reconsider the court’s holding in Allied Signal v. Ott, 785 N.E. 2d 1068 (Ind. 2003). In that case, Section 1 of the statute was held to apply the statute of repose to product liability actions whereas an exception for asbestos-related cases was set forth in Section 2. However, the Ott court held that Section 2 applied only to defendants who both mined and sold raw asbestos, leaving “those who sell asbestos-containing products within the ambit of Section 1.” Id. At 1073. The Indiana Supreme Court in Myers declined to reconsider the holdings in the Ott case based on stare decisis and the legislative acquiescence of the General Assembly in that decision. It did, however, agree to address the “new” constitutional claims not addressed in Ott.
The Myers court distinguished this case from Ott by finding a question of the disparate treatment of 2 classes of plaintiffs, i.e. those injured by defendants who both mined and sold raw asbestos and those injured by defendants outside the raw asbestos category, i.e. those with products that contained asbestos. It is this “unequal treatment” under Section 2 of Article 1, Section 23 of the Indiana Constitution that was held to be unconstitutional. The court reasoned that while Section 2 of that Act is the unconstitutional portion, because the General Assembly did not provide a severability clause for this statute, the whole thing must be declared unconstitutional.
The court’s Chief Justice Rush dissented in this opinion arguing stare decisis. He essentially pointed out that the court is not writing on a clean slate and that over the last 13 years the General Assembly could have abrogated the Ott case with a single stroke of the pen if it wanted to, but chose not to do that. (Previously, in Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003) the Indiana Supreme Court held the statute of repose applied to “miners and sellers” of asbestos products which effectively ended all such litigation in the state since few to no defendants were both miners and sellers). Justice Massa agreed with Justice Rush and effectively invited the General Assembly to do something about the “serious damage” this opinion will do going forward. Apparently, this “serious damage” is that the Indiana state courts will now most assuredly see an influx of asbestos cases filed in the coming months.