On March 2, 2016, the Indiana Supreme Court struck down Section 2 of the Indiana Product Liability Act and held that its statute of repose “does not apply to cases involving protracted exposure to an inherently dangerous foreign substance, in accordance with Covalt.”.¹

The case, Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., et. al, No. 49S00-1502-MI-119 (Ind. 2016), is significant, especially for companies involved in mass tort litigation, as most claims arising out of exposure in Indiana were historically very difficult, if not impossible, for Plaintiffs’ counsel to pursue. Companies involved in such litigation should prepare for an increase in Indiana-related claims.

Here is how the court arrived at its decision:

The Myers Court consolidated three appeals where two different individuals claimed exposure to asbestos. Plaintiff Myers worked as an electrician from 1959-1999 and was diagnosed with mesothelioma in March 2014. Plaintiff Geyman worked for an electric utility company from 1955-1970 and was diagnosed with mesothelioma in March 2007. The appeals involve either the grant or denial of various defendants’ motions for summary judgment.

All of the defendants argued that the plaintiffs’ claims were barred under AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003), where the Court previously found that Section 2 applies only to defendants who both mined and sold raw asbestos, so that manufacturers of products that contained asbestos received the protection of the statute of repose contained in Section 1. As none of the Myers defendants both mined and sold raw asbestos, they argued that, according to Section 1, the plaintiffs’ claims were barred by the statute of repose.

The plaintiffs argued that the statute of repose provisions, as interpreted in Ott, violated two provisions of the Indiana Constitution, the Right to Remedy Clause, Article 1, Section 12, and the Equal Privileges and Immunities Clause, Article 1, Section 23. The Myers Court only addressed the Equal Privileges and Immunities Clause, holding that Section 2 violates the Indiana Constitution.

First, the Myers Court found that Section 2 creates disparate treatment for asbestos victims because, while the two classes of asbestos victims were similarly situated, the statute of repose only applies to one of them. Myers, at 7. Second, the Myers Court found that Section 2 creates a preference and establishes an inequality among a class of citizens that is essentially the same. Id. at 8.

After ruling that Section 2 was unconstitutional, the Myers Court then “restored” the earlier Covalt decision as Indiana’s controlling precedent as to Section 1. The Myers Court found, therefore, that Section 1 did not apply to cases involving protracted exposure to an inherently dangerous foreign substance. In other words, the Myers Court returned to the old interpretation of Section 1 that allowed asbestos cases, like those it was discussing, to proceed in court despite the plain language of the statute.

Before the Myers decision, Indiana was not a favorable venue for plaintiffs with latent diseases in mass tort litigation because of its statute of repose. After this ruling, companies involved in tort litigation with claims arising out of Indiana should expect an increase in case filings. For a copy of the opinion, please click here.

^{1 Id. at 9, citing Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989).}