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Ott v. Alliedsignal5/19/2005
ort of Ott's motions. Appellants' App. p. 80. These affidavits were by Drs. Arthur Frank, David C. Mares, and Arthur Brody. Two of these affidavits were clearly prepared for other litigation, and none of the three specifically discussed the facts of Ott's case. Ott has appealed this action by the trial court.
Fourth, the trial court applied the statute of repose as instructed by Ott I and analyzed the constitutional issue raised by the statute of repose. Applied literally, the statute of repose plainly precludes Ott's claim because Jerome's disease was not diagnosed until after the repose period had passed. Ott claimed that this application of the statute of repose violated her right to a remedy under Article I, § 12 of the Indiana Constitution and her rights under the Equal Privileges and Immunities Clause of Article I, § 23 of the Indiana Constitution.
The trial court's responsibilities on this issue were dictated by our supreme court's opinion stating the following:
cause of action accrues [under Indiana Code § 34-20-3-1] 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. * * *
[Article I, § 12 of the Indiana Constitution] is implicated only where a cause of action in fact accrues (i.e., a reasonably experienced physician could have diagnosed the plaintiff with an asbestos-related illness or disease) within the ten-year statute of repose, yet the potential plaintiff had no reason to know of the diagnosable condition until the ten-year period had expired.
Based on the foregoing, the statutory scheme might be unconstitutional as applied to the plaintiff if a reasonably experienced physician could have diagnosed Jerome Ott with an asbestos-related illness or disease within the ten-year statute of repose, yet Ott had no reason to know of the diagnosable condition until the ten-year period had expired. We direct the trial court to examine this possibility on remand.
Ott I, 785 N.E.2d at 1075. The trial court noted that our supreme court in Ott I rejected the proposition that the cause of action accrued at the time of exposure to asbestos even if the illness would not have been diagnosable until years later. Appellants' App. p. 86. The trial court found that the process of the development of Jerome's cancer likely began during the ten-year repose period. Id. at 88. The trial court also found that there was no evidence that Jerome's disease itself manifested within the repose period. Id. Additionally, the trial court found no evidence that a reasonably experienced physician could have diagnosed the illness within the repose period. Id. at 88-89.
The trial court concluded that "this Court is unable to find that a genuine issue of material fact exists that Jerome Ott's asbestos-related illness or disease manifested itself within the Ten-Year Statute of Repose period." Id. at 91. Additionally, "this Court finds it impossible that a `reasonably experienced physician' could have diagnosed Jerome Ott with such a disease during this time period." Id. The trial court therefore granted summary judgment for the four defendants, and this appeal ensued.
Discussion and Decision
Ott argues that the trial court incorrectly struck three affidavits she filed in support of summary judgment. She also argues that the trial court erred in several respects in granting summary judgment in favor of the four defendants, contending that the trial court misunderstood the medical evidence and misapplied our supreme court's decision in Ott I. She also reasserts that the trial court's interpretation of Ott I and
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