The Court applied the ten-year statute of repose applicable to all product liability plaintiffs, and restored as controlling precedent Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), finding the Act unconstitutional as applied to asbestos plaintiffs.
In a dissenting opinion, Justice Mark Massa agreed with the position asserted by Mike Martinez of our office, and bemoaned the reversal of precedent and its effect on the perception of the Court. Justice Massa expressed particular outrage that this case “began with an unusual act of defiance in the trial court, when the judge (shortly before retiring) refused to apply our clear and unmistakable precedent and grant summary judgment to the defendants.” Noting that the court’s decision in Ott “could not be any clearer, the trial court was required to apply it accordingly, and refused,” Justice Massa lamented, “After today, what is to keep another trial judge from deciding he prefers this dissent?”
A copy of the decision is available here. (PDF opens in a new window.)
As we expected, the petitions for rehearing before the Indiana Supreme Court were denied on April 28, 2016. There was a split vote, 3-2, with the same justices dissenting as in the original opinion. The view of dissenting Justice Massa is of note:
“[W]e’ve already seen a preview of coming attractions. If distinguishing between ‘asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category’ is constitutionally impermissible, many other classifications the legislature has deemed appropriate can and will be challenged. The costs of massaging classifications for a desired result will undoubtedly soon multiply.”