Taryn Phaneuf Apr. 20, 2016, 12:04pm


INDIANAPOLIS (Legal Newsline) — The former manufacturers and sellers of products containing asbestos will likely see more claims filed under the Indiana Product Liability Act after the state Supreme Court determined the law’s statute of repose doesn’t apply to asbestos claims.

Jeffrey Stemerick, an environmental litigation lawyer in Indianapolis, told Legal Newsline he was surprised by the court’s decision, which concluded a section of the law that previously limited asbestos-related claims was unconstitutional.

“The Indiana Supreme Court is very stable and well-regarded,” said Stemerick, an associate at Taft Law. “While it does not hesitate to change the common law when it becomes outdated or strike down laws that are unconstitutional, it is unusual for it to change directions twice within such a short timeframe.”

Section 2 of the state law allowed claims against defendants who both mined and sold asbestos, which leaves out defendants who sold products containing the mineral that is known to cause mesothelioma.

Under section 2, those limited asbestos claims differed from other product liability claims because they weren’t subject to a 10-year statute of repose. Instead, those certain asbestos claims could be brought after 10 years had passed since the product was sold as long as it was filed within two years of plaintiff learning of a related sickness.

A 2003 court decision determined that claims against defendants that hadn’t both mined and sold asbestos were subject to Section 1 of the state law and its 10-year statute of repose.

In a decision combining three separate appeals, an electrician and an electric company employee filed suit for damages because of asbestos-related diseases. Larry Myers worked as an electrician for 40 years before retiring in 1999. He was diagnosed with malignant pleural mesothelioma in 2014.

Raymond Geyman was exposed to asbestos when he worked at an electric utility company from 1955 to 1970. He was diagnosed with mesothelioma in 2007 and died in 2008. Litigation continued on behalf of his estate.

The crux of the case came in the argument that Section 2 did not provide equal privilege to asbestos plaintiffs because asbestos-related injuries often don’t manifest until long after exposure.

“The practical effect of the enactment of Section 2 was to bar many claims brought against sellers of asbestos-containing products because the asbestos injury typically would not manifest within Section 1’s 10-year statute of repose,” Stemerick said.

The Supreme Court determined that treating potential asbestos plaintiffs unequally violates the state’s constitution. Thus, the recent suit invalidated Section 2 of the law.

After throwing out the asbestos-specific facet of the law, the Supreme Court turned to another precedent-setting decision. In Covalt v. Carey Canada, Inc., the Supreme Court determined that a plaintiff can bring a suit within two years of discovering a disease even if it’s been 10 years since they were last exposed to the product.

The ruling was limited to cases involving a disease contracted after prolonged exposure to a foreign substance.

“Thus, neither Section 2 nor Section 1’s 10-year statute of repose currently applies to asbestos claims,” Stemerick said. “Defendants who sold asbestos-containing products will now be exposed to liability for injuries caused by their products even when those products were delivered more than 10 years ago.”

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