Indiana Supreme Court Upsets Precedent in Finding Statute of Repose Unconstitutional in Asbestos Case

March 2016

In a 3-2 decision filed Wednesday, March 2, the Indiana Supreme Court rocked well-settled Indiana law by ruling that Indiana's 10-year statute of repose for products liability actions is unconstitutional as applied to asbestos cases. See the Indiana Product Liability Act (the "Act"), at Ind. Code §§ 34-20-1-1, et seq.

The decision in Larry Myers, et al. v. Crouse-Hinds, et al.; GE v. Mary R. Geyman, et al.; Owens-Illinois, Inc v. Mary R. Geyman, et al. ("Myers") overturns precedent set in 2003 by the Court in AlliedSignal, Inc. v. Ott, where it had found the entirety of the Act to be constitutional as applied to asbestos cases. The Myers majority opinion was met with strong dissent from Chief Justice Loretta H. Rush and Justice Mark S. Massa, who cited stare decisis (the need for judicial consistency) and the fact that the reasoning relied upon by the majority was argued to no avail in the Ott dissent.

The Act as Applied to Asbestos Cases

The Act's repose provision is broken into two statutory sections. The first provides a 10-year statute of repose for all products liability actions. The second provides an exception that allows claims against commercial miners and sellers of raw asbestos even after 10 years of exposure. In Myers, however, the Court declared that this "carve out" violated the Equal Privileges and Immunities Clause of Indiana's Constitution. The Court reasoned that the carve out, without a reasonable justification, impermissibly distinguished between those plaintiffs injured by defendants who mined and sold raw asbestos and those injured by product defendants who fell outside that category.

The Supreme Court's Decision and Its Impact on Asbestos Litigation

After invalidating the exception clause in its entirety, the Court reverted to its 1989 decision Covalt v. Carey Canada, Inc., which interpreted the statute of repose prior to the enactment of the exception for commercial sellers and manufacturers. In Covalt, the court held that "a plaintiff may bring suit within two years after discovering a disease and its cause, notwithstanding that the discovery was made more than 10 years after the last exposure to the product that caused the disease" where the injury was "caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance," such as asbestos. Relying on Covalt, the Court determined that the plaintiffs should be permitted to bring their asbestos-related actions, regardless of the type of defendant and the length of time it had been since the plaintiffs' exposure to asbestos, because the plaintiffs brought suit within two years of discovering their asbestos-related illnesses.

As Justice Massa explained in his dissent, Myers has taken "clear and predictable" law where defendants could be "free from indefinite liability exposure" after a reasonable amount of time and turned it on its head. Now, manufacturers and distributors previously protected from asbestos litigation in Indiana are exposed and subject to liability in the state. Without the statute of repose as a potential obstacle, Indiana state courts might see a rise in asbestos-related filings from litigants who previously might have filed suit in states where their claims against these product defendants would not be time barred.

Myers stands in stark contrast with the recent Illinois Supreme Court decision, Folta v. Ferro Engineering, where the court shielded employers from the asbestos-related claims of former employees whose injuries manifested after the 25-year statute of repose provided by the state's Workers' Compensation and Occupational Disease Acts. The Folta decision, unlike Myers, brought relief to employers and insurers in a state where asbestos-related lawsuits recently reached historic highs.

Click under "Resources" below to read the full text of the Myers decision.

For more information regarding the Myers decision, asbestos litigation, or other environmental and toxic tort-related litigation, please contact Douglas M. Nieder, Corey M. Schaecher, David A. Weder, or Krista C. McCormack. For more information about our products liability practice, please contact C. David Goerisch.