Are Mesothelioma Claims from Decades-Old Asbestos Exposure Still Viable Under Indiana Law?

Yes, according to the Indiana Supreme Court decision in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160 (Ind. 2016). In this case, the Court consolidated three appeals involving the constitutionality of the Indiana Product Liability Act statute of repose as applied to plaintiffs who had suffered mesothelioma-related illnesses and in one case death.

What is mesothelioma? Mesothelioma is a rare type of cancer that often develops years after exposure to asbestos, which is a naturally occurring mineral used in a variety of products manufactured for various industries and still found in many old buildings where it has not been removed through abatement. Mesothelioma can take different forms in tissues lining certain of the body’s organs or cavities including pleural mesothelioma (mesothelioma occurring in the pleura aka lining of the lung), peritoneal mesothelioma (mesothelioma occurring in the peritoneum aka lining of the abdominal cavity), and pericardial (mesothelioma occurring in the pericardium aka lining of the heart).

Turning to the decision in Myers, the Court examined Indiana’s Product Liability Act as applied to cases of the mesothelioma-inflicted plaintiffs. Chapter 3 of the Indiana Product Liability Act sets forth the statute of limitations for product liability actions in Indiana. Section 1 of Chapter 3 applies to product liability actions generally and includes a two-year statute of limitations and a ten-year statute of repose. Section 2 of Chapter 3 applies to asbestos-related actions and also includes a two-year statute of limitations. However, Section 2, unlike Section 1, does not include a ten-year statute of repose.

The issue in Myers concerned the constitutionality of the general ten-year statute of repose as applied to asbestos-related actions that did not fall within the ambit of Section 2 because they did not involve claims against defendants who both mined and sold commercial asbestos. In AlliedSignal v. Ott, 785 N.E.2d 1068 (2003), the Indiana Supreme Court held that Section 2 only applied to asbestos claims against defendants who both mined and sold raw asbestos and did not apply to defendants who only sold asbestos-containing products. The consolidated appeals in Myers concerned claims against defendants who did not both mine and sell asbestos.

The Indiana Supreme Court in Myers refused to alter its previous holding in Ott but instead held that Section 2 of Chapter 3 of the Indiana Product Liability Act was unconstitutional under the Equal Privileges and Immunities Clause, Article 1, Section 23 of Indiana’s Constitution. The Court held Section 2 was unconstitutional because (1) it prescribed disparate treatment between asbestos victims injured by defendants who both mined and sold raw asbestos and asbestos victims injured by other defendants who, for instance, only sold asbestos-containing products and because (2) such treatment was neither reasonably related to the inherent characteristics of the disparately treated classes nor uniformly applicable and equally available to all persons similarly situated. Furthermore, because the legislature included a non-severability clause in Section 2, the Court invalidated all of Section 2 of the Indiana Product Liability Act.

The Indiana Supreme Court in Myers recognized that asbestos-related diseases such as mesothelioma often have long latency periods of more than ten (10) years, which would be barred if the ten-year statute of repose were to be applied. Since the Court invalidated Section 2 of the Indiana Product Liability Act, the issues in this case were then to be analyzed under Section 1. While Section 1 governing the statute of limitations in product liability cases includes a ten-year statute of repose, the Court in Myers applied its previous holding in Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989) and held that the statute of repose is inapplicable in cases involving protracted exposure to an inherently dangerous foreign substance, such as asbestos in these cases, which caused mesothelioma-related injuries and illnesses.

In summary, the Indiana Supreme Court upheld its prior interpretation of Section 2 of the Indiana Product Liability Act as set forth in Ott, invalidated and voided Section 2 of the Indiana Product Liability Act as unconstitutional, and held that the general ten-year statute of repose did not apply to claims arising out of protracted exposure to asbestos-containing products.

Even though mesothelioma claims are still legally viable claims in Indiana, there are still many obstacles to bringing a successful claim including identification of the asbestos-containing product exposure(s) and how long the mesothelioma patient or their estate may have waited since learning of the mesothelioma diagnosis, which delay can still create statute of limitations concerns. While getting the necessary medical treatment is paramount for any mesothelioma patient, finding an asbestos or mesothelioma attorney who can advise on the availability of a legal remedy for this devastating disease should also be given due consideration as, unfortunately, the medical costs associated with treatment can be financially devastating and the survival rates for persons diagnosed with mesothelioma are very disheartening.

The Myers decision can be found here.