concurring in part and concurring in result.
I agree that the ten-year statute of repose in the Indiana Product Liability Act does not violate either art. I, § 12, or art. I, § 23, of the Indiana Constitution.
In my view, the constitutionality of the Product Liability Act statute of repose under art. I, § 12, was established in Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207 (1981). While it is true that Chief Justice Shepard and Justice Dickson suggested in their dissents in Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 387-90 (Ind.1989), that Dague did not fully address the constitutionality of the statute of repose under section 12, we have subsequently cited Dague approvingly for precisely that proposition. State v. Rendleman, 603 N.E.2d 1333, 1336-37 (Ind.1992).
While the constitutionality of the Product Liability Act statute of repose under art. I, § 23, has not been squarely addressed, I find Beecher v. White, 447 N.E.2d 622, 627 (Ind.Ct.App.1983), transfer denied, to be precedent. Beecher upheld the -constitutionality under art. I, § 23, of a ten-year statute of repose for claims arising from architectural deficiencies.
Although the Dague and Beecher precedents have not been explicitly overruled or disapproved, the question remains whether recent changes in our section 12 or section 23 jurisprudence would produce a different result today. Specifically, do our three decisions last year — Martin v. Richey, 711 N.E.2d 1273 (Ind.1999), and two related cases, Harris v. Raymond, 715 N.E.2d 388 (Ind.1999); Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.1999) — holding the Medical Malpractice Act statute of limitations unconstitutional as applied require that the statute of repose be invalidated in this case?
In Martin, we held that section 12
preclude^] the application of a two-year medical malpractice statute of limitations when a plaintiff has no meaningful opportunity to file an otherwise valid tort claim within the specified statutory time period because, given the nature of the asserted malpractice and the resulting injury or medical condition, plaintiff is unable to discover that she has a cause of action. Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim.
711 N.E.2d at 1284. Martin requires that the plaintiff have “an otherwise valid tort claim,” as the foregoing quotation makes clear by twice repeating that expression. Martin also reiterates an important point made in Rendleman that “the legislature has the authority to modify or abrogate *985common law rights provided that such change does not interfere with constitutional rights.” Martin, 711 N.E.2d at 1283 (citing Rendleman, 603 N.E.2d at 1336). The legislature has established the product liability tort claim only for physical harm which occurs within ten years of the delivery of the product to the initial user or consumer. Ind.Code § 34-20-3-l(b) (1998). There is no valid product liability tort claim for physical harm which occurs outside that ten-year period. Because the harm allegedly suffered by McIntosh was outside the ten-year period, McIntosh did not have the “otherwise valid tort claim” required by Martin.
As to section 23, Martin
requires that the statute of limitations be “uniformly applicable” to all medical malpractice victims, and that, therefore, the statute could not be applied to preclude a plaintiff from filing a claim simply because she has a disease which has a long latency period and which may not manifest significant pain or debilitating symptoms until several years after the asserted misdiagnosis.
Van Dusen, 712 N.E.2d at 493. Martin clearly recognizes that section 23 allows the legislature to create a statute of limitations in the Medical Malpractice Act so long as it is uniformly applicable to all medical malpractice victims. From this I conclude that section 23 is no impediment to the legislature creating a statute of repose in the Product Liability Act so long as it is uniformly applicable to all products victims. That is the case here: there is no claim that McIntosh is treated any differently under the Product Liability Act than any other product victim whose injury occurs more than ten years after delivery of the product to an initial user or consumer.
Because I do not believe that either Martin or its companion cases altered the established precedents of Dague and Beecher, I conclude that those precedents dictate that the Product Liability Act’s statute of repose violates neither art. I, § 12, nor art. I, § 23, of the Indiana Constitution.