Attorneys for Appellants
Michael A. Bergin
Julia Blackwell Gelinas
Daniel M. Long
Indianapolis, IN
Attorneys for AlliedSignal, Inc.
R. Troy Mulder
Janelle K. Linder
Indianapolis, IN
Attorneys for McCord Gasket Co.
Douglas King
James M. Boyers
Indianapolis, IN
Attorneys for Bondex International, Inc.
Donald Orzeske
Jennifer Blackwell
Indianapolis, IN
Attorney for Borg-Warner Corp.
Knight Anderson
Indianapolis, IN
A.W. Chesterton
Monika Talbot
Indianapolis, IN
Ford Motor Co.
Attorneys for Amici Curiae
Jon L. Williams
Indianapolis, IN
Janet E. Golup
Philadelphia, PA
Attorneys for Asbestos Corporation Limited and Bell Asbestos Mines, Ltd.
George T. Patton, Jr.
Stephanie F. Holtzlander
Bryan H. Babb
Indianapolis, IN
Attorneys for Indiana Legal Foundation
Michael R. Fruehwald
Andrew J. Detherage
Shelese Emmons
Indianapolis, IN
Attorneys for Indiana Manufacturers Association and Indiana Chamber of
Commerce
Attorneys for Appellee
Neal Lewis
Orland, IN
Robert E. Paul
Philadelphia, PA
IN THE
INDIANA SUPREME COURT
ALLIEDSIGNAL, INC., A.P. GREEN INDUSTRIES, INC., A.W. CHESTERTON, INC.,
ARMSTRONG WORLD INDUSTRIES, INC., ASBESTOS CLAIMS MANAGEMENT CORP.,
ASBESTOS INSULATING & ROOFING, BONDEX INTERNATIONAL, INC., BORG-WARNER
CORP., BRAKE MATERIALS & PARTS, CARLISLE
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CORP., CHRYSLER CORP., CONGOLEUM CORP., CRANE CO., DANA CORP., FIRESTONE
TIRE & RUBBER CO., FLEXITALLIC GASKET CO., FLINTKOTE CO., FORD MOTOR CO.,
GAF CORP., GARLOCK, INC., GENERAL MOTORS CORP., GENERAL REFRACTORIES CO.,
GEORGIA- PACIFIC CORP., HAUSMAN, KAISER ALUMINUM & CHEMICAL CORP., KAISER
GYPSUM CO., INC., KELSEY-HAYES CO., LEAR SIEGLER DIVERSIFIED HOLDING CORP.,
MACK TRUCKS, INC., MOHAWK MFG. & SUPPLY CO., MOOG AUTOMOTIVE, INC., MOOG
AUTOMOTIVE, MCCORD GASKET CO., MUNCIE RECLAMATION, NAVISTAR INTERNATIONAL
TRANSPORTATION CORP., NORTHRUP GRUMMAN CORP., NUTURN CORP., OWENS CORNING,
OWENS-ILLINOIS, INC., PNEUMO ABEX CORP., RAPID AMERICAN, RAYLOC CO., U.S.
GYPSUM CO., UNIROYAL, INC., VELLUMOID, INC., W.R. GRACE & CO.-CONN.
Appellants (Defendants below),
v.
SHIRLEY OTT,
Appellee (Plaintiff below).
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APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Stanley A. Levine, Judge
Cause No. 02D01-9910-CP-2074
ON INTERLOCUTORY APPEAL
March 25, 2003
SULLIVAN, Justice.
Our state legislature has prescribed general rules governing lawsuits
alleging injuries caused by products and special rules in asbestos cases.
This opinion analyzes the interaction of these rules and their
constitutionality.
Background
Jerome Ott was diagnosed with lung cancer in August 1998. He and his
wife, Shirley Ott, filed suit against Defendants, alleging that his lung
cancer had been caused by exposure to asbestos-containing products while he
was employed at the following times and locations: American Supply (1949-
51); International Harvester (1951-53); Transport Motor Express (1953-54);
and Jerry Ott Motors (1955-83). Jerome Ott died in January 2000. The
complaint was then amended to allege that his death had been caused by the
same exposure to asbestos.
The Indiana General Assembly has enacted two statutes that limit the
period of time within which persons can file lawsuits alleging injuries
caused by products. One of these statutes, Ind. Code § 34-20-3-1,
generally applies to product liability claims; we will refer to this
statute in this opinion as “Section 1.” The second statute, Ind. Code § 34-
20-3-2, specifically applies to at least some asbestos liability claims; we
will refer to it 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-
5.5, respectively.)
This opinion will parse these sections in some detail. For purposes
of this Background section, it is sufficient to say that Section 2 gives
plaintiffs more leeway in filing claims than does Section 1. The
Defendants in this case argue that Section 2 only applies to a limited
class of defendants and that they are not within that class. As such, they
contend, the Otts must proceed against them under the more restrictive
Section 1. The Otts respond that Section 2 allows them to proceed against
these Defendants and that if it does not, then Section 1 violates Indiana
Constitution art. I, § 12,[1] as applied to asbestos plaintiffs, and
Section 2 violates art. I, § 23.[2]
The trial court agreed with the Defendants that Section 2 did not
apply to them but then agreed with the Otts that because it did not,
Section 1 was unconstitutional.
Defendants then secured certification from the trial court of this
interlocutory appeal. We held an extended oral argument on May 16, 2002.
At the same time that this case was proceeding, four other cases
raising the same constellation of issues were presented to us. Harris v.
A. C. & S., Inc.,766 N.E.2d 383 (Ind. Ct. App. 2002); Jurich v. Garlock,
Inc., 759 N.E.2d 1066 (Ind. Ct. App. 2001); Allied Signal, Inc. v. Herring,
757 N.E.2d 1030 (Ind. Ct. App. 2001); Black v. ACandS, Inc., 752 N.E.2d 148
(Ind. Ct. App. 2001). In three of these cases, the respective panels of
the Court of Appeals held that Section 2 applied to the defendants and so
did not have to reach the constitutional issue. Harris, 766 N.E.2d at 391;
Herring, 757 N.E.2d at 1035-37; Black, 752 N.E.2d at 154-55. In Jurich,
the Court of Appeals panel found that Section 2 did not apply to the
defendants but it found Section 1 unconstitutional. Jurich, 759 N.E.2d at
1070-74, 1077. In summary, the plaintiffs prevailed below in all five of
these cases—in three on statutory grounds and in two on constitutional
grounds.
Finding that the trial court in this case and the Court of Appeals in
Harris, Jurich, Herring, and Black incorrectly analyzed these issues at
least in part, we have accepted jurisdiction in each. (We resolve
Harris,[3] Jurich,[4] Herring,[5] and Black[6] in separate opinions today.)
Discussion
We will work our way through the statutory issues, turn to the two
state constitutional claims, and then finish with a discussion of our
Court’s decision in Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind.
1989).
I
Section 1 provides:
[A] product liability action must be commenced:
(1) within two (2) years after the cause of action accrues; or
(2) within ten (10) years after the delivery of the product to
the initial user or consumer.
However, if the cause of action accrues at least eight (8) years but
less than ten (10) years after that initial delivery, the action may
be commenced at any time within two (2) years after the cause of
action accrues.
Section 1(b). Section 2 excepts certain asbestos-related actions from the
operation of Section 1's ten-year statute of repose. A product liability
action based on personal injury, disability, disease, or death resulting
from exposure to asbestos may be commenced within two years after the
action accrues, without regard to the ten-year statute of repose. Section
2(a). For purposes of this section, "accrual" is defined as the date when
the injured person knows that he or she has an asbestos-related disease or
injury. Section 2(b). The exception applies only to:
(1) persons who mined and sold commercial asbestos; and
(2) funds that have, as a result of bankruptcy proceedings or to
avoid bankruptcy proceedings, been created for the payment of asbestos
related disease claims or asbestos related property damage claims.
Section 2(d).
In summary, the Indiana legislature has outlined the specific time
requirements for at least some asbestos-related negligence actions in
Section 2, a section distinct from the statute of limitations and period of
repose for all other product liability actions outlined in Section 1.
While product liability actions under Section 1 have a two-year statute of
limitations and a ten-year statute of repose, asbestos-related actions
under Section 1 enjoy a different timetable. When a product liability
action qualifies under Section 2, there is no firm statute of repose.
Rather, a lawsuit must be commenced within two years “after the cause of
action accrues,” which is defined as “the date when the injured person
knows that the person has an asbestos related disease or injury.” Sections
2(a) & (b).
The crucial language for our purposes arises in Section 2(d)(1).
There the Legislature provided that Section 2 only applies if the defendant
is a “person[] who mined and sold commercial asbestos.” Defendants who do
not fall within this classification are entitled to the protection offered
by the ten-year statute of repose in Section 1. As such, Defendants argue
vigorously that they are not “persons who mined and sold commercial
asbestos”; the Otts argue that Defendants are.
When reviewing a statute, courts give effect and meaning to every
word. Spaulding v. Int’l Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind.
1990). This Court’s primary goal when construing the meaning of a statute
is to determine the Legislature’s intent. Smith v. State, 675 N.E.2d 693,
696 (Ind. 1996), appeal after remand, 695 N.E.2d 909 (Ind. 1998) (citing
Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995)). Given such deference to
legislative intentions, an unambiguous statute is interpreted to mean what
it plainly states, and its plain and obvious meaning may not be enlarged or
restricted. Ind. Dep’t of State Rev. v. Horizon Bancorp, 644 N.E.2d 870,
872 (Ind. 1994).
A
We focus first on the expression “persons who mined and sold.” The
Defendants argue that to fall within this class of defendants, a person
must both mine and sell. According to the Defendants, because none of them
mine asbestos, they do not fall within this class. Prior to Black, this
was the position taken by several panels of the Court of Appeals and by now-
Chief Judge McKinney. Novicki v. Rapid-American Corp., 707 N.E.2d 322, 324
(Ind.Ct.App.1999); Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1068
(Ind.Ct.App.1999), trans. denied, 726 N.E.2d 300 (Ind. 1999); Roberts v. A.
C. & S., Inc., 1998 U.S. Dist. LEXIS 22635, at *12-13 (S.D. Ind. 1998).
The Otts make several arguments in response.
First, they say that it is more likely that the Legislature meant the
phrase to be read "persons who mined and persons who sold" than "persons
who both mined and sold." This is in part because the latter reading
renders the words "and sold" superfluous since it is unlikely that there
are any entities that mine but do not sell asbestos.
Second, the Otts argue that Section 2 was clearly enacted in
recognition of the long latency period associated with asbestos-related
illnesses. It is inconsistent with that recognition, they contend, to
limit claims to the relatively few companies that both mine and sell
asbestos, exempting all others that disseminate asbestos and asbestos-
containing products into the marketplace.
Third, the Otts maintain that the Defendants' interpretation of
“persons who mine and sell” cannot be harmonized with subsection (d)(2),
quoted supra, that permits lawsuits initiated outside of the ten-year
statute of repose to proceed against "funds that have, as a result of
bankruptcy proceedings or to avoid bankruptcy proceedings, been created for
the payment of asbestos related disease claims or asbestos related property
damage claims." The Otts argue that the Legislature could not have meant
for viable companies that sold asbestos but did not mine it to be excluded
from liability, but those same companies, if in bankruptcy with the funds
described in section (d)(2), to be subject to claims.
We will withhold resolution of this debate for the moment.
B
Regardless of the outcome of the mined “and/or” sold debate, a
defendant must sell “commercial asbestos” to be subject to Section 2.
While the Otts argue that the expression “commercial asbestos” means any
asbestos-containing products, we are persuaded by Judge Barnes’s analysis
on this point in Jurich:
"Commercial" has been defined as "[o]f, relating to, or being goods,
often unrefined, produced and distributed in large quantities for use
by industry." American Heritage College Dictionary 280 (3d ed. 2000).
Jurich cites us to 40 C.F.R. § 61.141 to support her argument that
"commercial asbestos" includes any asbestos-containing product.
However, our reading of the entirety of this Environmental Protection
Agency regulation leads us to the opposite conclusion. The regulation
states that "[c]ommercial asbestos means any material containing
asbestos that is extracted from ore and has value because of its
asbestos content." Elsewhere, there are clear indications that the
EPA considered "commercial asbestos" to be a bulk product separate
from asbestos-containing products, for example: "Fabricating means
any processing . . . of a manufactured product that contains
commercial asbestos . . . ." Id. (emphasis added). Also,
"[m]anufacturing means the combining of commercial asbestos . . . with
any other material(s), including commercial asbestos, and the
processing of this combination into a product. " Id. (emphasis
added). Thus, we agree with Sears Roebuck and Co. v. Noppert, 705
N.E.2d 1065, 1068 (Ind. Ct. App. 1999), trans. denied, to the extent
that panel believed "commercial asbestos" did not refer to sellers of
"products which contained some components composed of asbestos."
Here, the defendants sold asbestos-containing products, not
"commercial asbestos," which we conclude refers to either "raw" or
processed asbestos that is incorporated into other products. The
legislature did not intend [Section 2] to apply to these defendants.
Jurich, 759 N.E.2d at 1070-71. Accord Roberts, 1998 U.S. Dist. LEXIS
22635, at *11-12.
C
Our resolution of the “commercial asbestos” issue also guides our
decision on the mined “and/or” sold issue. While we think that the
arguments made by the Otts as to why all sellers, and not just those who
are both miners and sellers, are subject to Section 2 are plausible in
isolation, when read together with the “commercial asbestos” requirement we
reach the opposite result. We think that the language used by the
Legislature represents its conscious intent to subject to Section 2 only
those persons who produce raw asbestos – “persons who mine[ ] and s[ell]
commercial asbestos” – and leave those who sell asbestos-containing
products within the ambit of Section 1.
II
We turn now to an analysis of whether the statutory scheme we have
been discussing meets constitutional muster. The Otts contend that, if the
statute is construed in the manner we have concluded in part I that it
should be, supra, it violates both art. I, § 12, and art. I, § 23, of the
Indiana Constitution. The trial court agreed.[7]
A
Our State Bill of Rights famously provides:
All courts shall be open; and every person, for injury done to
him in his person, property, or reputation, shall have remedy by due
course of law.
Ind. Const. art I, § 12. As discussed supra, Section 1 requires a product
liability action to be commenced within ten years after the delivery of the
product to the initial user or consumer. The trial court acknowledged that
this ten-year “statute of repose” was constitutional on its face, see Dague
v. Piper Aircraft Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 213 (1981); see
also State v. Rendleman, 603 N.E.2d 1333, 1336-37 (Ind. 1992); but found it
to be unconstitutional as applied to the Otts.
In reaching its conclusion, the trial court found our decision in
Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), controlling. In Martin, we
held that art. I, § 12,
preclude[s] 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 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 plaintiff's access to courts
and ability to pursue an otherwise valid tort claim.
711 N.E.2d at 1284. The trial court found Mr. Ott’s situation to be
“virtually identical” to that at issue in Martin:
[A]sbestos caused cancer takes between ten (10) and twenty-five (25)
years to manifest itself. Even with the utmost amount of diligence
Mr. Ott would not have been able to meet the time restrictions of
[Section 1]. No one would have. Just like Ms. Martin, Mr. Ott had an
accrued claim, albeit unrecognizable, and was “in the position of
having the claim but no practical means of asserting it.”
(Appellants’ App. at 113)(footnotes and citation omitted).
We think that this analysis paints with too broad a brush. In
Jurich, Judge Barnes begins with a framework for his art. I, § 12, analysis
that we think is helpful here:
There are at least three contexts in which the statute of repose could be
considered in this case. First, is the statute constitutional as applied
to a plaintiff who is exposed to asbestos from and injured by a product
more than ten years after that product's initial delivery? Second, is
the statute constitutional as applied to a plaintiff who is injured by a
product within ten years of its initial delivery, but who has neither
knowledge of nor any ability to know of that injury until more than ten
years have passed? Third, in the absence of evidence of the length of
time between a product's initial delivery and an injury . . . , can the
statute constitutionally be applied to a plaintiff who was injured by a
product before [Section 1's] passage?
Jurich, 759 N.E.2d at 1071.
We are constrained to observe that the trial court's analysis does
not take into account the first of these three scenarios, i.e., where the
first exposure to asbestos does not occur until more than ten years after
the asbestos-containing product's initial delivery. We see nothing in the
trial court's findings that indicate one way or the other when the
plaintiff's first exposure to asbestos occurred relative to the asbestos-
containing product's initial delivery. In the event that this period
exceeded ten years, the relevant defendants would be protected by the
statute of repose. Application of the statute of repose would be
constitutional under art. I, § 12: the plaintiff would be in exactly the
same position as the plaintiff injured in the plane crash in Dague or by
the loader in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000), both
cases where the statute of repose was upheld.
We have a less definitive answer to the second of Judge Barnes's
scenarios—where a plaintiff is injured by a product within ten years of its
initial delivery, but who has neither knowledge of nor any ability to know
of that injury until more than ten years have passed. We agree with the
trial court and Judge Barnes that the rule of Martin v. Richey is
implicated. But it is only implicated where the plaintiff’s cause of
action has accrued within the ten-year period.
Here it is difficult to reconcile science and law. On the one hand,
injury for this purpose does not occur upon mere exposure to (or inhalation
of) asbestos fibers. There is substantial authority on this point.[8] On
the other hand, we recognize that injury may well occur before the time
that it is discovered. As Judge Barnes says, “the very point of” Martin v.
Richey is that the constitution required access to courts where “she could
not have known or discovered that she was the victim of malpractice within
[the applicable] time frame.” Jurich, 759 N.E.2d at 1074 (emphasis in
original).
We hold that, with respect to asbestos claims under Section 1, a
cause of action accrues at that point at which a physician who is
reasonably experienced at making such diagnoses could have diagnosed the
individual with an asbestos-related illness or disease. See e.g., Neubauer
v. Owens-Corning Fiberglas Corp., 686 F.2d 570, 577 (7th Cir. 1982) (A
“cause of action accrues when the asbestos-caused disease becomes
diagnosable—e.g., provable by medical evidence in court.”). In this
regard, we disapprove Judge Barnes's and the trial court’s formulations to
the extent that they hold that a cause of action accrues when exposure to
asbestos occurs even though a disease does not manifest itself until many
years later. In our view, it is only when the disease has actually
manifested itself (and therefore could be diagnosed by a reasonably
experienced physician) that the cause of action accrues. Jurich, 759
N.E.2d at 1075. Thus, Martin is implicated only where a cause of action in
fact accrues (i.e., 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.
Based on the foregoing, the statutory scheme might be
unconstitutional as applied to the plaintiff if a reasonably experienced
physician could have diagnosed Jerome Ott with an asbestos-related illness
or disease within the ten-year statute of repose, yet Ott 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.
This brings us to the third of Judge Barnes's scenarios—whether, in
the absence of evidence of the length of time between a product's initial
delivery and an injury, Section 1 can be constitutionally applied to a
plaintiff who was injured by a product before Section 1's passage. Judge
Barnes argues that such a plaintiff had a vested right to pursue such a
claim that the Legislature could not take away.
Justice Boehm’s plurality opinion in McIntosh discussed the power of
the Legislature to abolish common law remedies. His opinion conclusively
demonstrates, we believe, the Legislature’s power to do so and we will not
repeat his analysis here. See McIntosh, 729 N.E.2d at 977-78. But Judge
Barnes acknowledges this and makes a slightly different point. The “key
distinction,” he says, is that the asbestos plaintiff in Jurich had “a
vested right, not in a rule of common law in the abstract, like the
McIntoshes, but because he had been injured by defendant's products at a
time when Indiana courts recognized common law product liability actions
without an equivalent to the later-enacted . . . statute of repose and thus
without reference to the length of time a product had been in the stream of
commerce.” Jurich, 759 N.E.2d at 1076.
First, we point out that the statute of repose has been in effect
since July 1, 1978. See 1978 Ind. Acts. 141, § 28. Even if Judge Barnes
is correct, a cause of action would have to accrue (i.e., a reasonably
experienced physician would have to have been able to diagnose an asbestos-
related illness or disease) before July 1, 1978, for his distinction to
make a difference.
But, second, a plaintiff’s right to pursue such a claim may in some
circumstances be subject to changes in common law or statute. For example,
a plaintiff’s ability to assert products claims was expanded under the
common law, see, e.g., Cornette v. Searjeant Metal Prods., Inc., 258 N.E.2d
652, 656 (Ind. Ct. App. 1970) (adopting Restatement of Torts (Second) §
402A), and we have held it within the purview of the Legislature to modify
or abrogate that expansion. McIntosh, 729 N.E.2d at 977-78.
Art. I, § 12, provides that “[a]ll courts shall be open; and every
person, for injury done to him in his person, . . .shall have remedy by due
course of law.” Section 1, as we have previously held, does not violate
this provision. Furthermore, asbestos plaintiffs have additional remedies
under Section 2 where they may pursue miners and sellers of commercial
asbestos[9] and asbestos bankruptcy funds without regard for Section 1’s
statute of repose.[10] Thus, even if an asbestos plaintiff’s claim would
not accrue within the normal ten-year period of repose, courts remain open
under Section 2.
B
The trial court also found the statute of repose violative of Indiana
Constitution art. I, § 23, which provides:
The General Assembly shall not grant to any citizen, or class of
citizens, privileges or immunities, which, upon the same terms, shall
not equally belong to all citizens.
In determining whether a statute complies with or violates this provision,
we use the two prong test set out in Collins v. Day, 644 N.E.2d 72, 80
(Ind. 1994). However, before we can determine whether the legislative
classification is permissible under this test, we need to identify the
legislative classification at issue. We think the constitutional claim
here, reduced to its essentials, is that asbestos victims in Indiana are
bound by the statute of repose governing product liability actions when
suing particular categories of defendants but are not so constrained when
suing others. Thus, the statute creates a distinction between asbestos
victims and other victims under the product liability act.
While it is true that such a distinction is created, we find it
unnecessary to determine whether the distinction is constitutionally
permissible because the classification resulting from the distinction of
which the plaintiffs complain, as we have seen, works in favor of asbestos
plaintiffs.[11] See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347-48,
56 S.Ct. 466, 483 (1936) (Brandeis, J., concurring) (“The Court will not
pass upon the validity of a statute upon complaint of one who fails to show
that he is injured by its operation. . . . The Court will not pass upon the
constitutionality of a statute at the instance of one who has availed
himself of its benefits.”). Asbestos plaintiffs are subject to the same
statute of repose as other products liability claims with respect to all
defendants other than persons who mine and sell commercial asbestos and
certain bankruptcy funds. With respect to the latter two classes of
defendants, asbestos plaintiffs are not subject to a statute of repose at
all. To the extent there is any art. I, § 23 defect, asbestos plaintiffs
do not suffer any cognizable harm.
III
We believe we should conclude with a brief discussion of Covalt v.
Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989). In Covalt, this Court held
that Section 1 did not apply to asbestos cases given the long latency
periods for asbestos-related diseases and a resulting inability to discover
the injury prior to the expiration of the period of repose. Id. at 385-87.
Section 2 was adopted by the Legislature while Covalt was pending,
i.e., Covalt was decided under prior law. Id. at 383 n.1. The rationale
for the Covalt opinion was that the Court “[could not] say that the
Legislature intended the ten year statute of repose to bar claims such as
this one, where the injury is the result of protracted exposure to a
hazardous foreign substance.” Id. at 386. The adoption of Section 2
renders that analysis obsolete.
In addition, there are key factual differences between Covalt and the
present case. Covalt involved a plaintiff who worked with raw asbestos.
543 N.E.2d at 383. We stated in Covalt that the applicability of the
holding in that case was limited to “the precise factual pattern
presented,” which involved exposure to raw asbestos fibers. Id. at 387.
Thus, Covalt can be read as consistent with the effect of Section 2 in that
it relieved asbestos plaintiffs from the statute of repose in a lawsuit
against a supplier of commercial asbestos. To the extent that Covalt is
inconsistent with today’s opinion, it is overruled.
Conclusion
Having previously granted transfer pursuant to Indiana Appellate Rule
56(A), we now reverse the judgment of the trial court. We remand this
matter to the trial court 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.
I strongly disagree with the majority's decision to reverse the trial
court's denial of summary judgment in this case. In particular, I believe
that the majority is incorrect in: (1) limiting the statutory term
"commercial asbestos" to mean only raw asbestos; (2) construing "mined and
sold" contrary to legislative intent; (3) failing to find a violation of
Article 1, Section 12, of the Indiana Constitution; (4) failing to find a
violation of Article 1, Section 23, of the Indiana Constitution; and (5)
overruling rather than following Covalt v. Carey Canada, Inc.
1. Commercial Asbestos
Indiana Code § 34-20-3-2[12] (hereinafter "Section 2") provides an
exemption from the general products liability periods of limitation and
repose by generally permitting actions for injuries from exposure to
asbestos to be commenced within two years after the injured person knows
that he or she has an asbestos-related disease or injury. The majority
construes the word "commercial" in subsection (d)(1) to limit Section 2's
exception to apply only as to claims against defendants "who produce raw
asbestos," but not to allow the delayed filing as to defendants "who sell
asbestos-containing products." Maj. slip opin. at 11.
In construing a statute, "our primary goal is to determine and effect
legislative intent." Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995). To
give effect to the legislature's intent, we do not consider a statutory
provision in isolation but rather consider the statute as a whole and
interpret an individual provision so as to harmonize it with other sections
of the enactment. Indiana Dep't of Pub. Welfare v. Payne, 622 N.E.2d 461,
466 (Ind. 1993); see also Saylor v. State, 765 N.E.2d 535, 564 (Ind. 2002);
Robinson v. Wroblewski, 704 N.E.2d 467, 474 (Ind. 1998); Douglas v. State,
663 N.E.2d 1153, 1156 (Ind. 1996); Hinshaw v. Bd. of Comm'rs of Jay County,
611 N.E.2d 637, 639 (Ind. 1993). "Where statutory provisions are in
conflict, no part of a statute should be rendered meaningless but should be
reconciled with the rest of the statute." Robinson, 704 N.E.2d at 474.
The majority's conclusions in Part I of its opinion are grounded upon
its construction of the word "commercial" found in subsection (d)(1) of
Section 2. In contrast, however, other provisions in Section 2 demonstrate
the legislature's intent to grant Section 2's exemption to all persons
injured by exposure to asbestos, regardless of its source. Subsection (a)
identifies product liability actions based on "personal injury, disability,
disease, or death resulting from exposure to asbestos." Subsection (b)
refers generally to any person who "has an asbestos related disease or
injury." Section (d)(2) applies to "payment of asbestos related disease
claims." These references are in stark contrast to the majority's
interpretation of subsection (d)(1) that restricts Section 2's operation to
only those persons whose asbestos-related injuries result from exposure to
raw asbestos. Considering Section 2 as a whole to ascertain legislative
intent does not support the majority's decision to deny the benefit of
Section 2 to persons whose asbestos-related injuries result from asbestos-
containing products, as distinguished from raw asbestos.
On the other hand, appellate courts generally presume that all
statutory language is used intentionally. Preston v. State, 735 N.E.2d
330, 333 (Ind. Ct. App. 2000). Each word should be "given effect and
meaning where possible, and no part of the statute is to be held
meaningless if it can be reconciled with the rest of the statute." Allied
Signal, Inc. v. Herring, 757 N.E.2d 1030, 1035 (Ind. Ct. App. 2001).
Thus, if possible, and if it can be reconciled with the rest of Section 2,
we should infer that the insertion of the adjective "commercial" was likely
intended to distinguish defendants who produced "commercial asbestos" from
those who produced "asbestos." It is altogether unclear, however, what
distinction was intended. The Indiana General Assembly did not define the
term "commercial" as used in Section 2.
Even the Court of Appeals opinion that the majority finds persuasive,
Jurich v. Garlock, 759 N.E.2d 1066 (Ind. Ct. App. 2001), concludes
"commercial asbestos" refers to "either 'raw' or processed asbestos that is
incorporated into other products." Id. at 1071 (emphasis added). The
majority quotes the Environmental Protection Agency regulation that defines
"commercial asbestos" as "any material containing asbestos that is
extracted from ore and has value because of its asbestos content." Maj.
slip opin. at 10 (quoting id., quoting 40 C.F.R. § 61.141 (emphasis
added)). By including processed asbestos incorporated into other products,
this is a much broader definition than the majority's view that the term is
restricted to raw asbestos only. Maj. slip opin. at 11.
I remain convinced that, looking to the whole of Section 2 to
determine the legislature's intent, the phrase "commercial asbestos"
includes asbestos incorporated into products intended for commerce. To
construe "commercial" to limit the Section 2 exception only to claims
against producers of raw asbestos is inharmonious and irreconcilable with
the remainder of Section 2.
2. "Mined and Sold"
Guided by its belief that "commercial asbestos" in Section 2 means
"raw asbestos," the majority concludes that the legislature intended
Section 2 to permit delayed filing only as to claims against persons who
both mine and sell raw asbestos. Because the majority's interpretation of
"commercial" is questionable, the construction of the phrase "mined and
sold" as used in Section 2 becomes critical.
As previously noted, Section 2 provides an exemption from the general
products liability periods of limitation and repose by generally permitting
actions for injuries from exposure to asbestos to be commenced within two
years after the injured person knows that he or she has an asbestos-related
disease or injury. Subsection 2(d)(1) states: "This section applies only
to product liability actions against . . . persons who mined and sold
commercial asbestos . . . ." (Emphasis added.) The plaintiff urges that
the legislature intended the phrase to mean persons who mined and persons
who sold. The defendant argues that the phrase was meant to limit Section
2 only to actions against persons who both mined and sold.
In construing an enactment, the legislative intent will prevail over
the literal import of the words. FGS Enterprises, Inc. v. Shimala, 625
N.E.2d 1226, 1228 (Ind. 1993). The strict literal or selective meaning of
individual words should not be overemphasized, but rather the intent must
be ascertained from the enactment as a whole. Shell Oil Co. v. Meyer, 705
N.E.2d 962, 970 (Ind. 1998). While the literal language favors "both mined
and sold," there is compelling evidence that the legislature intended to
mean "persons who mined and persons who sold." First, as noted by the
majority, interpreting the phrase to mean "both mined and sold" renders the
words "and sold" superfluous "since it is unlikely that there are any
entities that mine but do not sell asbestos." Maj. slip opin. at 9.
Second, because the obvious purpose of Section 2 is to provide for fairness
due to the long latency period associated with asbestos-related illnesses,
it is inconsistent for it to apply only to claims against the relatively
few companies that both mine and sell asbestos, and essentially to preclude
actions against all others that disseminate asbestos and asbestos-
containing products. Third, the "both mined and sold" interpretation would
prohibit delayed filing of actions against solvent companies that sold but
did not mine asbestos, but not against such companies in bankruptcy with
the funds described in subsection (d)(2). The plaintiff argues that the
legislature did not likely intend to thus "immunize solvent companies and
place greater burdens on the insolvent ones." Br. of Appellee at 13-14.
In Black v. ACandS, Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001), our
Court of Appeals thoughtfully addressed the construction of "mined and
sold." Writing for the Court, Judge Mattingly-May noted that a reviewing
court may "make minor substitutions of words where necessary to give
vitality to the legislative intent." Id. at 153 (quoting Dague v. Piper
Aircraft Corp., 275 Ind. 520, 526, 418 N.E.2d 207, 211 (1981)). She
pointed out that the Dague court itself, in construing a product liability
statute of repose, modified the enacted language by changing the
disjunctive "or" to the conjunctive "and" because to literally construe the
language would "fl[y] in the face of a clearly contrary legislative
intent." Id. Judge Mattingly-May persuasively explained:
The strict literal interpretation urged upon us by the defendants
would lead to the illogical result that "asbestos-related actions"
were limited to those actions brought against miners of asbestos, and
did not include actions against manufacturers and sellers if they did
not also mine the product. Because the statute of repose is concerned
not with the introduction of the asbestos into the marketplace but
with exposure to the hazardous foreign substance that causes disease,
an interpretation of the statute that permits or denies recovery based
solely on the nature of the entity that introduced the asbestos into
the marketplace cannot stand. We believe the legislature could not
have intended to permit actions against an entity that both mined and
sold asbestos but to preclude actions against entities that introduced
asbestos into the marketplace as miners only or as sellers only.
Id. at 154 (internal citation omitted). This analysis has since been noted
with approval in Harris v. ACandS, Inc., 766 N.E.2d 383, 391 (Ind. Ct. App.
2002); Jurich, 759 N.E.2d at 1069-70; Herring, 757 N.E.2d at 1035; Fulk v.
Allied Signal, Inc., 755 N.E.2d 1198, 1202 (Ind. Ct. App. 2001); Parks v.
A.P. Green, Indus., Inc., 754 N.E.2d 1052, 1058 (Ind. Ct. App. 2001); and
Poirier v. A.P. Green Services, Inc., 754 N.E.2d 1007, 1010 (Ind. Ct. App.
2001).
In accord with Judge Mattingly-May’s analysis, I am convinced that
the legislature intended "persons who mined and sold" to mean "persons who
mined and persons who sold."
3. Article 1, Section 12
I also believe that Section 2, as construed by the majority, violates
the Right to Remedy Clause, Article 1, Section 12, of the Indiana
Constitution. The majority finds otherwise, rejecting the trial court's
determination that the ten year product liability statute of repose[13] was
unconstitutional as applied to the plaintiff. Judge Levine's trial court
findings stated:
[A]sbestos caused cancer takes between ten (10) and twenty-five (25)
years to manifest itself. Even with the utmost amount of diligence
Mr. Ott would not have been able to meet the time restrictions of IC
[34-20-3-1]. No one would have. Just like Ms. Martin [in Martin v.
Richey, 711 N.E.2d 1273 (Ind. 1999)], Mr. Ott had an accrued claim,
albeit unrecognizable, and was in the position of having the claim but
no practical means of asserting it.
Appellants' App. p.113 (footnotes and citation omitted). Because of this
long latency period, asbestos-caused cancer usually does not appear until
after the ten-year statute of repose. This is precisely the circumstance
that led this Court in Martin v. Richey to find that application of the
medical malpractice two-year statute of limitations to the facts of that
case violated Article 1, Section 12, because Martin had "no meaningful
opportunity to file an otherwise valid tort claim within the specified
statutory period." 711 N.E.2d 1273, 1284 (Ind. 1999). We stated:
[G]iven 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 plaintiff's access to courts and
ability to pursue an otherwise valid tort claim.
Id. As we explained in McIntosh v. Melroe Co., 729 N.E.2d 972, 979 (Ind.
2000), "[t]he holding in Martin v. Richey is that a claim that exists
cannot be barred before it is knowable." Likewise here, Jerome Ott was
diagnosed with lung cancer in 1998 and died in 2000. The plaintiff alleges
that his lung cancer was caused by exposure to asbestos at his various
places of employment from 1949 through 1983. Because of the unusually long
latency period of asbestos-related cancer, it was impossible for Ott to
discover that he had contracted a disease from exposure to asbestos within
the statute of repose.
The majority observes "nothing in the trial court's findings that
indicate one way or the other when the plaintiff's first exposure to
asbestos occurred relative to the asbestos-containing product's initial
delivery." Maj. slip opin. at 14. This fact is irrelevant to our review
of the denial of summary judgment. As the proponent of summary judgment,
it was the defendant's burden to establish that the action was commenced in
violation of the statutory limitation period. Burks v. Rushmore, 534
N.E.2d 1101, 1104 (Ind. 1989). To succeed on summary judgment, the
defendants were required to demonstrate that there was no genuine issue as
to any material fact and that Ott could have discovered that he had
sustained an injury in time to comply with the statutory limitation period,
as required by Martin. Even though this Court in McIntosh held that
"products that produce no injury for ten years are no longer subject to
claims under the Product Liability Act," 729 N.E.2d at 979, the defendants
failed to demonstrate that the asbestos exposure produced no injury for
over ten years. The defendants' failure of proof supports the denial of
summary judgment.
In its application of Martin, the majority today creates a new
definition of “accrues” and declares that, "with respect to asbestos claims
under Section 1, a cause of action accrues at that point at which a
physician who is reasonably experienced at making such diagnoses could have
diagnosed the individual with an asbestos-related illness or disease."
Maj. slip opin. at 16. Because this omits consideration of when the
injured person (as opposed to a hypothetical physician) becomes aware of
his or her own injury, today's new definition of "accrues" is wholly
contrary to existing law. "[A] cause of action accrues when the resultant
damage of a negligent act is ascertainable or by due diligence could be
ascertained . . . ." Burks, 534 N.E.2d at 1104 (quoting Barnes v. A.H.
Robins Co., Inc., 476 N.E.2d 84, 86 (Ind. 1985)). The ascertainability of
damage is determined "by evaluation of the nature and circumstances of the
information known or reasonably discoverable by [the injured person],
beginning at the initial point of his claimed harm." Id. at 1104. The
legislature itself understands this to be the proper meaning of "accrues."
Section 2 explains: "A product liability action for personal injury,
disability, disease, or death resulting from exposure to asbestos accrues
on the date when the injured person knows that the person has an asbestos
related disease or injury." I.C. 34-20-3-2(b) (emphasis added).
Therefore, and contrary to the majority, Martin is clearly implicated
when a person injured by exposure to asbestos did not, and could not by the
exercise of due diligence, ascertain that he or she had been damaged by the
asbestos, regardless of whether the condition hypothetically might have
been diagnosed by a reasonably experienced physician within the ten-year
statute of repose. Moreover, for the limitation period to bar the claim,
it is a defendants' burden to establish a plaintiff's knowledge of the
asbestos-related injury within the statutory period.
For the reasons expressed in Martin and reaffirmed in McIntosh, the
trial court did not err in finding the product liability statute of repose
to violate Article 1, Section 12, as applied to the facts of this case.
4. Article 1, Section 23
In response to the plaintiff's contention that the statute of repose
violates Article 1, Section 23, of the Indiana Constitution, the majority
finds that the plaintiff suffered no cognizable harm and declines to
address the issue. This conclusion results from the majority's
characterization of the essential claim as creating a constitutional
distinction between asbestos victims and other victims under the product
liability act. This is not the set of unequally treated classes identified
in the plaintiff's appeal. To the contrary, the plaintiff alleges that,
with the narrow construction of "mined and sold commercial asbestos"
adopted by the majority, the statute of repose unconstitutionally grants
unequal treatment to those employees who contract asbestos-related diseases
from exposure to raw asbestos in contrast to those whose diseases result
from exposure to asbestos-containing products.[14]
Article 1, Section 23, commands: "The General Assembly shall not
grant to any citizen, or class of citizens, privileges or immunities,
which, upon the same terms, shall not equally belong to all citizens."
This clause prohibits a statute from providing disparate treatment to
different classes of persons if: (1) the disparate treatment is not
reasonably related to inherent characteristics that distinguish the
unequally treated classes, or (2) the preferential treatment is not
uniformly applicable and equally available to all similarly situated
persons. McIntosh, 729 N.E.2d at 981; Martin, 711 N.E.2d at 1280; Collins
v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
There are no inherent characteristics that distinguish workers with
asbestos-related diseases caused by exposure to raw asbestos from those
with the same diseases brought about by exposure to manufactured products
containing asbestos. Thus the unequal treatment accorded to each class
cannot be reasonably related to any inherent differences. With the
majority's refusal to construe Section 2 to equally treat all persons with
asbestos-related diseases, the product liability statute of repose clearly
grants to persons whose diseases derive from raw asbestos substantial
privileges and immunities that do not equally belong to identically
situated persons whose diseases result from asbestos-containing products.
The constitutional violation is apparent.
5. Covalt v. Carey Canada, Inc.
In Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), this
Court held that the product liability statute of repose did not apply to
claims arising out of asbestos-related disease:
Accordingly, because of the long latency period with asbestos-related
diseases, most plaintiffs' claims would be barred even before they
knew or reasonably could have known of their injury or disease and
they would be denied their day in court if the ten year statute of
repose were applied. To require a claimant to bring his action in a
limited period in which, even with due diligence, he could not be
aware that a cause of action exists would be inconsistent with our
system of jurisprudence.
Id. at 387.
The majority dismisses this holding on grounds that Covalt was decided
under prior law because the language of Section 2, although then recently
adopted, was not applicable to the facts there presented. We noted this
fact in Covalt and described the effect of the amendment as providing "in
pertinent part that an asbestos-related action must be brought within two
years of the date when the injured person knows that he has an asbestos-
related disease or injury." Id. at 383-84 n.1. The effect of Covalt was
to determine the application of the statute of repose with respect to
asbestos-related claims in a manner quite consistent with that implemented
with the legislature's enactment of the ameliorative language of Section 2,
allowing access to courts by persons with asbestos-related injuries.
The majority declares that the adoption of Section 2 renders Covalt's
analysis "obsolete," Maj. slip opin. at 22, because Covalt expressly
excluded Section 2 from its determination and noted its uncertainty
regarding whether the legislature "intended the ten year statute of repose
to bar claims such as this one, where the injury is the result of
protracted exposure to a hazardous foreign substance." Covalt, 543 N.E.2d
at 386. The majority's analysis assumes that Section 2 represents the
legislature's intent to bar all such claims except those against producers
of raw asbestos. However, if Section 2 is read as the Covalt court
understood it, to provide a humane, fair, and just exception from the
statute of repose for all persons whose asbestos-related diseases cannot be
ascertained within ten years after exposure, the existence of Section 2 in
no way renders Covalt obsolete.
Conclusion
For each of the reasons expressed above, I dissent from the majority.
RUCKER, J., concurs.
-----------------------
[1] Ind. Const. art. I, § 12 provides in part: “All courts shall be
open; and every person, for injury done to him in his person, property, or
reputation, shall have remedy by due course of law.”
[2] Ind. Const. art. I, § 23 provides: “The General Assembly shall not
grant to any citizen, or class of citizens, privileges or immunities,
which, upon the same terms, shall not equally belong to all citizens.”
[3] Harris v. A.C.&S. et al., No. 45S03-0303-CV-125 (Ind. Mar. 25, 2003).
[4] Jurich v. Garlock, Inc., et al., No. 45S03-0303-CV-127 (Ind. Mar. 25,
2003).
[5] AlliedSignal, Inc., et al. v. Herring, No. 49S02-0303-CV-126 (Ind.
Mar. 25, 2003).
[6] Black v. A.C.&S., Inc., et al., No. 45S04-0303-CV-124 (Ind. Mar. 25,
2003).
[7] In Jurich v. Garlock, Inc., 759 N.E.2d 1066 (Ind. Ct. App. 2001), the
Court of Appeals found the statute violated art. I, § 12, as applied. Id.
at 1071-1077. The Court properly found it unnecessary to address art. I, §
23. Id. at 1071.
[8] See Burns v. Jaquays Mining Corp., 752 P.2d 28, 30 (Ariz. Ct. App.
1987) (citing Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d
Cir. 1985), cert. denied, 474 U.S. 864 (1985)) (“[S]ubclinical injury
resulting from exposure to asbestos is insufficient to constitute the
actual loss or damage to a plaintiff’s interest required to sustain a cause
of action under generally applicable principles of tort law.”); Bernier v.
Raymark Indus., Inc., 516 A.2d 534, 542 (Me. 1986) (“[I]nhalation alone is
insufficient to give rise to [a judicially recognizable] claim. . . . The
actionable harm is the manifestation of disease in the body, not the
exposure to the potentially hazardous substance . . . .”); Simmons v.
Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996) (“[A]symptomatic pleural
thickening is not a compensible injury which gives rise to a cause of
action. . . . [N]o physical injury has been established that necessitates
the awarding of damages . . . .”); Locke v. Johns-Manville Corp., 275
S.E.2d 900, 905 (Va. 1981) (“Simply put, legally and medically there was no
injury upon inhalation of defendants’ asbestos fibers.”). To the extent
that Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind.1989), holds to the
contrary, it is overruled.
[9] A plain reading of the text of the statute demonstrates that
plaintiffs who are injured by asbestos released from asbestos-containing
products may still pursue the original entity that mined and sold the raw
asbestos used to make the asbestos-containing product even if they are no
longer able to pursue the manufacturer of the product. The use of
“asbestos” in Section 2(a) demonstrates that all asbestos-victims
potentially have claims that fall under the exception since all were
injured by asbestos, whether in its raw form or released from a
manufactured product. Thus, both groups have product liability claims that
may fall under Section 2, provided the defendants in the respective actions
are miners and sellers of the original, raw asbestos.
[10] One amicus argues that asbestos plaintiffs have additional remedies
under the Worker’s Occupational Diseases Compensation Act, Ind. Code § 22-3-
7-2, and the Residual Asbestos Injury Fund, Ind. Code § 22-3-11-1. See Br.
of Amicus Curiae Indiana Legal Foundation at 19-22. As we read these
materials, however, these remedies seem modest at best.
[11] One amicus argues that Section 2 is unconstitutional as applied to
miners of raw asbestos. See Br. of Amici Curiae Asbestos Corporation
Limited and Bell Asbestos Mines, Ltd. at 5-17. No party to the current
litigation is a miner of raw asbestos. Consequently, given that such a
claim does not impact any party in the present case, we will not address
Section 2’s constitutionality as applied to miners at this time.
[12] Indiana Code §34-20-3-2 provides:
(a) A product liability action that is based on:
(1) property damage resulting from asbestos; or
(2) personal injury, disability, disease, or death
resulting from exposure to asbestos;
must be commenced within two (2) years after the cause of action
accrues. The subsequent development of an additional asbestos
related disease or injury is a new injury and is a separate
cause of action.
(b) A product liability action for personal injury,
disability, disease, or death resulting from exposure to
asbestos accrues on the date when the injured person knows that
the person has an asbestos related disease or injury.
(c) A product liability action for property damage accrues
on the date when the injured person knows that the property
damage has resulted from asbestos.
(d) This section applies only to product liability actions
against:
(1) persons who mined and sold commercial asbestos; and
(2) funds that have, as a result of bankruptcy proceedings
or to avoid bankruptcy proceedings, been created for the
payment of asbestos related disease claims or asbestos
related property damage claims.
(e) For the purposes of IC 1-1-1-8, if any part of this
section is held invalid, the entire section is void.
(f) Except for the cause of action expressly recognized in
this section, this section does not otherwise modify the
limitation of action or repose period contained in section 1 of
this chapter.
[13] Indiana Code § 34-20-3-1(b) states:
Except as provided in section 2 of this chapter, a product
liability action must be commenced:
(1) within two (2) years after the cause of action accrues;
or
(2) within ten (10) years after the delivery of the product
to the initial user or consumer.
However, if the cause of action accrues at least eight (8) years
but less than ten (10) years after that initial delivery, the
action may be commenced at any time within two (2) years after
the cause of action accrues.
[14] As an example, the plaintiff questions the resulting unequal
treatment of a worker at one plant making brake linings and who was exposed
to asbestos fiber causing cancer and another worker in a different city who
contracted asbestos-related cancer caused from his exposure to the brake
linings manufactured at the first plant. Br. of Appellee at 17.