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Ott v. Alliedsignal5/19/2005
had not examined the plaintiff. Id. at 682. In this case, in contrast, the physicians were not trying to explain the exact manner in which Jerome contracted cancer, but rather they were explaining the general disease process in their affidavits.
Because the affidavits were relevant and did not raise the reliability issues that we addressed in Armstrong and Hannan, the trial court should not have excluded them (although the sections in two of the affidavits discussing a separate case are obviously irrelevant, and Ott does not rely on those portions). Although the affidavits should not have been excluded, we note that much of the information contained in the excluded affidavits was presented to the trial court through the physicians' depositions. See, e.g., Appellant's App. p. 1236-42 (Dr. Frank's testimony regarding progress of asbestos-related cancer); p. 1285-93 (Dr. Mares' testimony regarding progress of asbestos-related cancer). Nevertheless, in reviewing the trial court's judgment we will consider the affidavits.
II. Summary Judgment
We review a trial court's decision on summary judgment using the same standard as the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Am. Home Assurance Co. v. Allen, 814 N.E.2d 662, 666 (Ind. Ct. App. 2004), reh'g denied, trans. dismissed. We construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party. Id.
On appeal, the trial court's order granting or denying a motion for summary judgment is cloaked with a presumption of validity. Sizemore v. Erie Ins. Exch., 789 N.E.2d 1037, 1038 (Ind. Ct. App. 2003). A party appealing from an order granting summary judgment has the burden of persuading the appellate tribunal that the decision was erroneous. Id. at 1038-39.
Our supreme court outlined the law to be applied here in Ott I. First, Ott I determined as a matter of statutory construction that only entities that both mined and sold commercial asbestos were subject to the special statute of limitations in Indiana Code § 34-20-3-2. 785 N.E.2d at 1073. The court also determined that the special statute of limitations' application to "commercial asbestos" covers not any asbestos-containing product but only raw or processed asbestos not incorporated into other products. Id. Under these holdings, there is no dispute that the special statute of limitations in Indiana Code § 34-20-3-2 does not apply to Ott's claims against the four defendants in this case.
The court then analyzed Ott's claim that the application of the products liability statute of repose to her case violated Article I, § 12 of the Indiana Constitution. She argued that the long latency period for asbestos-caused cancer meant that the repose period precluded her from recovering for injuries she sustained. Analyzing this claim, the court first determined how to apply the language in Indiana Code § 34-20-3-1(a)(1) requiring commencement of an action within two years "after the cause of action accrues." The court wrote, "with respect to asbestos claims under Section 1, 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." Ott I, 785 N.E.2d at 1075.
The court went on to apply Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), to the facts of Ott's claim. Martin analyzed the application of the two-year medical malpractice statute of limitations to an individual who had been the victim of malpractice but neither discovered nor reasonabl
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