A recent decision by the Indiana Supreme Court should open the courthouse doors to more mesothelioma lawsuits that would otherwise be time barred.

In a decision concerning the state’s Product Liability Act, the court determined that the act’s 10-year statute of repose violated the Equal Privileges and Immunities Clause of the Indiana state constitution.

The court found the statute drew an impermissible distinction between plaintiffs harmed by defendants who both mined and sold raw asbestos, versus plaintiffs harmed by other types of defendants.

By its terms, the statute required a would-be plaintiff to initiate a products liability claim no more than 10 years from the date the offending product reached them.

The problem for victims of mesothelioma is that the disease typically takes much longer to develop enough to be detected – typically 20 to 50 years. The court saw that a 10-year statute of repose would bar many mesothelioma claims years before they could be discovered.

The act provides an exception allowing plaintiffs to bring mesothelioma claims within two years of being diagnosed, but only against companies who mined and sold raw asbestos. The exception did not apply to claims against companies that manufactured asbestos-containing products.

The mesothelioma claim underlying the court’s decision was brought by plaintiff Larry M., a mesothelioma victim with 40 years’ experience as an electrician. Larry was not diagnosed with mesothelioma until 2014 – fifteen years after he retired, and many decades after his first asbestos exposure.

The trial court ruled that Larry’s claims against several asbestos product manufacturers were barred by the Product Liability Act’s statute of repose.

Mesothelioma Claims May Increase in Indiana

Larry’s mesothelioma attorney noted that other states had invalidated similar statutes on constitutional grounds.

Some plaintiffs who would otherwise have pursued their mesothelioma claims in Indiana court have attempted to establish jurisdiction in other states, in an attempt to avoid the 10-year deadline in Indiana.

The state supreme court’s decision departs from a 13-year-old precedent that reaffirmed the effect of the 10-year cutoff date. That decision from 2003 had reversed a 1989 decision holding that the statute of repose should not apply in cases where the harm takes decades to reveal itself, as it does with mesothelioma.

The court reasoned that the statute can’t constitutionally block a victim’s claim if the victim has no way of knowing they are sick.

A mesothelioma attorney for one of the defendants said he expected an increase in the number of new asbestos claims. Some claim that had previously been dismissed may now be reinstated, he said.

Like statutes of limitation, statutes of repose cut off certain legal rights if they are not exercised by a certain deadline. A statute of repose tends to set a farther-out deadline – sometimes decades instead of just a few years – but also tends to be enforced more strictly, with fewer exceptions that can push back the deadline.

Mesothelioma is a cancer of the pleura, the double-layered membrane surrounding the lungs. It is always fatal, typically within one to four years after diagnosis. Asbestos exposure is the only known cause of mesothelioma in the United States.