Attorneys for Appellants
Donald J. Berger
South Bend, IN
Robert G. McCoy
Mark R. Penney
Chicago, IL
Attorney for Amicus Curiae
W. Russell Sipes
Indianapolis, IN
Attorney for the Indiana Trial Lawyers Association
Attorneys for Appellee
Thomas S. Ehrhardt
Garrett V. Conover
Crown Point, IN
Attorney for WTI Rust Holdings, Inc.
Christopher D. Lee
Todd C. Barsumian
Evansville, IN
Attorneys for Combustion Engineering, Inc. and Mallinckrodt Group, Inc.
Susan E. Mehringer
Lisa M. Dillman
Indianapolis, IN
Attorneys for A.C.&S., Inc.
David Pera
Merrillville, IN
James Boyers
Indianapolis, IN
Amber Achilles
Chicago, IL
Attorneys for North American Refractories
Raymond Modesitt
Terre Haute, IN
Ryan Johanningsmeier
Indianapolis, IN
Attorneys for Prox Co., Inc.
Jason Kennedy
Chicago, IL
Attorney for Weil-McLain Co.
IN THE
INDIANA SUPREME COURT
WILLIE L. HARRIS, JR., ESTHER SERNA, individually and as special
administrator of the estate of Louis Serna, FREDA NOPPERT, individually and
as special administrator of the estate of Robert Noppert, and CAROLINE
GOTTSCHALK, individually and as special administrator of the estate of John
Gottschalk,
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Appellants (Plaintiffs below),
v.
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.
) 45S03-0303-CV-125
)
)
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)
)
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APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffery J. Dywan, Judge
Cause Nos. 45D01-9812-CT-992, 45D01-9609-CT-896
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Dexter L. Bolin, Judge
Cause No. 84D03-9604-CT-652, 84D03-9604-CT-653
ON PETITION TO TRANSFER
March 25, 2003
SULLIVAN, Justice.
On October 18, 2000, the Indiana Court of Appeals consolidated the
appeals of four plaintiffs: Willie J. Harris Jr.; Esther Serna,
individually and as Special Administrator of the Estate of Louis Serna;
Freda Noppert, individually and as Special Administrator of the Estate of
Robert Noppert; and Caroline Gottschalk, individually and as Special
Administrator to the Estate of John Gottschalk. The facts of each case
will be discussed separately.
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. Serna’s 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. Noppert’s 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 12, 1997.
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
Gottschalk’s wife, filed a complaint on behalf of herself and her husband
alleging, among other things, that Mr. Gottschalk’s 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 evidence 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.
Conclusion
We grant transfer pursuant to Indiana Appellate Rule 58(A), thereby
vacating the opinion of the Court of Appeals. We vacate the judgment of
the trial court and remand for further proceedings consistent with this
opinion.
SHEPARD, C.J., and BOEHM, J., concur. DICKSON, J., dissents with separate
opinion, in which, RUCKER, J., concurs.
DICKSON, Justice, dissenting.
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 Article 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.