Jurich v. John Crane, Inc.

• Court: Indiana Appellate Court
• Writing for the Court: BARNES.
• Citation: Jurich v. John Crane, Inc., 824 N.E.2d 777 (Ind. App. 2005)
• Decision Date: 31 March 2005
• Docket Number: No. 45A05-0407-CV-385.,45A05-0407-CV-385.
• Parties: Carole JURICH, Individually and as Special Administrator of the Estate of Nicholas Jurich, Deceased, Appellant-Plaintiff, v. JOHN CRANE, INC., and WTI Rust Holdings, Inc., Appellees-Defendants. Esther Serna, Individually and as Special Administrator of the Estate of Louis Serna, Deceased, Appellant-Plaintiff, v. Mallinckrodt Group, Inc., WTI Rust Holdings, Inc., Appellees-Defendants.

824 N.E.2d 777

Carole JURICH, Individually and as Special Administrator of the Estate of Nicholas Jurich, Deceased, Appellant-Plaintiff, v. JOHN CRANE, INC., and WTI Rust Holdings, Inc., Appellees-Defendants.

Esther Serna, Individually and as Special Administrator of the Estate of Louis Serna, Deceased, Appellant-Plaintiff, v. Mallinckrodt Group, Inc., WTI Rust Holdings, Inc., Appellees-Defendants.

No. 45A05-0407-CV-385.

Court of Appeals of Indiana.

March 31, 2005.

Robert G. McCoy, Michael Kaczmarek, Cascino Vaughan Law Offices, Chicago, IL, James T. Walker, James T. Walker Professional Corporation, Merrillville, IN, Attorneys for Appellants.

David A. Temple, Matthew J. Schafer, Drewry Simmons Vornehm, LLP, Indianapolis, IN, Michael A. Pollard, Baker & McKenzie, LLP, Chicago, IL, Attorneys for Appellee, John Crane, Inc.

Thomas S. Ehrhardt, Garrett V. Conover, Kopka Pinkus & Dolin, Crown Point, IN, Attorney for Appellee, WTI Rust Holdings, Inc.

Todd C. Barsumian, Kahn Dees Donovan & Kahn, Evansville, IN, Attorney for Appellee, Mallinckrodt Group, Inc.

Douglas B. King, James M. Boyers, Wooden & McLaughlin, LLP, Indianapolis, IN, James D. Johnson, Rudolph Fine Porter & Johnson, LLP, Evansville, IN, Attorneys for Amicus Curiae, Defense Trial Counsel of Indiana.

OPINION

BARNES, Judge.

Case Summary¹

Carole Jurich and Esther Serna, individually and as administrators of the estates of Nicholas Jurich and Louis Serna (collectively "the Appellants"), appeal the trial court's grant of summary judgment in favor of John Crane, Inc., WTI Rust Holdings, Inc., and Mallinckrodt Group, Inc. (collectively "the Appellees"). We affirm.

Issue

We restate the issue before us as whether the trial court properly concluded that the ten-year statute of repose of the Product Liability Act ("PLA") barred the Appellants' claims against the Appellees for asbestos-related diseases that caused the decedents' deaths.

Facts

Nicholas Jurich worked at Inland Steel in East Chicago from 1946 to 1986. During this time, he was exposed to asbestos from products and materials distributed by Appellees John Crane and WTI or its predecessor. In 1996, more than ten years after his retirement, Mr. Jurich was diagnosed with mesothelioma, a rare cancer of the lining of the lungs almost exclusively associated with asbestos exposure. In 1997, Mr. Jurich and his wife Carole sued John Crane, WTI, and others seeking damages for personal injuries and loss of consortium. Mr. Jurich died later that year.

The trial court granted John Crane's and WTI's motion for summary judgment, which contended that Carole's suit was time-barred by the ten-year statute of repose of the PLA, Indiana Code Section 34-20-3-1. On appeal, we reversed and held that the statute of repose was unconstitutional under Article 1, § 12 of the Indiana Constitution as applied to Jurich in part because there was scientific evidence that his lungs were injured by his every exposure to asbestos, within the ten-year repose period, even if his illness did not manifest itself until many years later. Jurich v. Garlock, Inc., 759 N.E.2d 1066 (Ind. Ct.App.2001) ("Jurich I").

Louis Serna was also employed at Inland Steel, in his case from 1942 to 1985, and was exposed to asbestos from products delivered by Appellees Mallinckrodt and WTI or its predecessor. He was diagnosed with mesothelioma in 1998. He and his wife, Esther, filed suit later that year, and Mr. Serna died in 1999.

The trial court granted summary judgment in favor of WTI and Mallinckrodt, again because of the statute of repose. On appeal, a different panel of this court than decided Jurich I did not reach the question of the statute of repose's constitutionality. Instead, the panel reversed summary judgment on the basis that WTI and Mallinckrodt fell under Indiana Code Section 34-20-3-2, which is an exception to the ten-year statute of repose for those who "mined and sold commercial asbestos." Harris v. A.C. & S., Inc., 766 N.E.2d 383 (Ind.Ct.App.2002).

Our supreme court granted transfer in Jurich I, Harris, and several other asbestos cases. In so doing, it adopted that part of Jurich I holding that the exception to the statute of repose did not apply to defendants such as the Appellees who sold asbestos-containing products, but only to entities who produced and distributed raw asbestos. Jurich v. Garlock, Inc., 785 N.E.2d 1093, 1095 n. 2 (Ind.2003) ("Jurich II"). However, the court disagreed with Jurich I's resolution of the constitutional question. It held that with respect to asbestos claims and the PLA statute of repose, "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." AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068, 1075 (Ind.2003).² The court also held that if a disease has actually manifested itself within the ten-year statute of repose period, but the potential plaintiff had no reason to know of the diagnosable condition until after the ten-year period had expired, then the statute of repose would be unconstitutional as applied under Article 1, § 12. Id.

Our supreme court remanded to the trial court for further proceedings to determine whether a reasonably experienced physician could have diagnosed Mr. Jurich or Mr. Serna with an "asbestos-related illness or disease" within the ten-year period, but neither had reason to know of the diagnosable condition until the ten-year period had expired. Harris,785 N.E.2d at 1090; Jurich II, 785 N.E.2d at 1095. On remand, the Appellees again moved for summary judgment on the basis of the statute of repose. In response, the Appellants designated evidence, in the form of expert testimony, indicating that changes to cells in Mr. Jurich's and Mr. Serna's lungs, necessary to the later development of mesothelioma, could have been detected by a reasonably experienced physician within the statute of repose period by means of an open lung biopsy and examination of the retrieved cells under a microscope. X-rays or other non-invasive procedures could not have detected the changes. One of these same experts also opined, without contradiction, that a reasonably experienced physician would not have diagnosed Mr. Jurich with mesothelioma before 1995 or Mr. Serna with the same disease before 1996, or well after the statute of repose period had passed for both individuals. All of the experts also stated that it would have been dangerous and medically unethical to perform an open lung biopsy on a patient while they were asymptomatic. Both Mr. Jurich and Mr. Serna were completely asymptomatic during the entirety of the ten-year statute of repose period and both were in good health when they retired from Inland Steel in the mid-1980's. The trial court granted the Appellees' motions for summary judgment, concluding that the PLA statute of repose was constitutional as applied to the Appellants. The Appellants now appeal.

Analysis

On appeal, the standard of review for the grant or denial of a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003) (citing Ind. Trial Rule 56(C)). All facts and reasonable inferences drawn from those facts, as contained in the materials designated to the trial court, must be construed in favor of the non-moving party. Id. We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied his or her day in court. Id. When a moving party asserts as an affirmative defense that an action is time-barred, and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense. See Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000).

Here, the Appellees undisputedly established that the Jurichs and the Sernas filed their lawsuits more than ten years after the last delivery of any of the Appellees' products. The PLA statute of repose generally bars any suit brought more than ten years after the delivery of a product to the initial user or consumer. Ind.Code § 34-20-3-1(b).³ Thus, the burden was on the Appellants to demonstrate a material issue of fact that would avoid application of the statute of repose affirmative defense.

Article 1, § 12 of the Indiana Constitution 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." In Jurich I, we concluded:

[T]he PLA ten-year statute of repose is unconstitutional as applied to a claim such as the Jurichs': where a plaintiff is injured by an asbestos-containing product either by exposure to asbestos fibers before the enactment of the PLA, and/or where there is no evidence the product was more than ten years old at the time the plaintiff was exposed to asbestos fibers contained in the product. Such a time limitation is an unreasonable legislative impediment on the bringing of an otherwise valid claim, due to the very long latency period [five to seventy years] of the development of asbestos-related diseases and the impossibility of the plaintiff's knowing whether such a disease is slowly progressing in his or her body. This represents a denial of justice that is inconsistent with Article I, Section 12 of the Indiana Constitution....

Jurich I, 759 N.E.2d at 1077. In so concluding, we relied primarily on Martin v. Richey, 711 N.E.2d 1273, 1283-84 (Ind. 1999), which held the Medical Malpractice Act's two-year occurrence-based statute of limitations violated Article 1, § 12 as applied to plaintiffs who did not know of and could not have discovered the act of malpractice within the...