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Ott v. Alliedsignal5/19/2005
g, 694 N.E.2d 222 (Ind. 1997), reh'g denied, Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003), and other cases, a key issue in Section 23 analysis is how to define the classes to be compared. Ott suggests that the appropriate classes for comparison are, in one class, individuals who are harmed by asbestos but whose diseases do not manifest for more than ten years after initial delivery of the product, and in the other class, individuals who are harmed by asbestos and whose diseases manifest within the ten-year repose period. Under prescribed Section 23 analysis, it might be difficult to find an inherent difference between those two classes that would relate reasonably to their different treatment under the statute of repose.
But McIntosh instructs that these are the wrong classes to compare. 729 N.E.2d at 981 ("It is the claim, not any innate characteristic of the person [harmed], that defines the class."). Rather, we should compare the classes of products created by the statute. McIntosh concluded that newer products (those in service less than ten years) are sufficiently different than older products (those in service more than ten years) to support different statutory treatment, although the court admitted that drawing the line precisely at ten years is somewhat arbitrary. Id. As discussed above, the differences between older and newer products include the following: injuries from older products are less likely to be caused by inherent defects in the products; lawsuits involving older products present problems of proof; and manufacturers are entitled to know, at some point, that they are no longer responsible for potential lawsuits over products that long ago left their control. Id. Our supreme court held in McIntosh that these differences are rationally related to inherent distinctions between the classifications and therefore are sufficient to support different treatment under the Section 23 test. Id.
The evidence on remand casts this comparison in a somewhat different light. The evidence on remand shows that the true difference in this case is not between newer products and older products. The product causing Jerome's injury had likely been in service less than ten years-it was a newer product under the statute of repose. The classification embodied in this case is between newer products that cause injuries that manifest themselves within ten years of delivery to the initial user and newer products that cause injuries that manifest themselves more than ten years after delivery to the initial user. McIntosh approved different treatment of older products as compared to newer products. "The legislature has provided that after the product is in use for ten years, no further claims accrue. That is not an unreasonable exercise of legislative power." Id. at 978. It did not approve the different treatment Jerome's case presents-where long-latency injuries caused by newer products are treated differently than short-latency injuries caused by newer products.
Nor did our supreme court address this application of Section 23 in Ott I. As the four defendants point out, our supreme court did cite Article I, § 23 in Ott I, Appellees' Br. at 33, but the court applied Section 23 to an altogether different issue-whether the fact that some asbestos-related claims would be covered by the longer limitations statute in Indiana Code § 34-20-3-2 rather than the usual statute of repose violated the Equal Privileges and Immunities Clause. The court ruled that the potential application of the longer limitations period did not violate Section 23 because it benefited, rather than harmed, asbestos plaintiffs. Ott I, 785 N.E.2d at 1077.
The issue now before us is different. It requi
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