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Ott v. Alliedsignal5/19/2005
y could have discovered her injury during the limitations period. The court held that the two-year limitations period could not be constitutionally applied to Martin (although it was not facially invalid) because her cause of action accrued during the limitations period, but the statute of limitations acted as a procedural bar precluding her, through no fault of her own, from pursuing the cause of action she actually possessed.
Our supreme court concluded, however, that if Ott's cause of action did not accrue until after the repose period expired, there would be no violation of Section 12. The purpose of the statute of repose is to extinguish causes of action against manufacturers of products once the repose period has expired, and the legislature's establishment of the repose period does not ipso facto violate Section 12. See McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000) (holding that application of repose period to bar claim that accrued more than ten years after product was delivered to its initial user did not violate Section 12).
The crux of the Section 12 claim on remand, therefore, was when Ott's claim accrued: "the statutory scheme might be unconstitutional as applied to the plaintiff if a reasonably experienced physician could have diagnosed Jerome 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." Ott I, 785 N.E.2d at 1075. The trial court's assignment on remand was to determine whether a reasonably experienced physician could have diagnosed Jerome's "asbestos-related illness or disease"-that is, if the claim accrued-before the ten-year period expired.
Another panel of this Court already has examined this issue. Jurich v. John Crane, Inc., 824 N.E.2d 777 (Ind. Ct. App. 2005), trans. pending ("Jurich III"). While the facts in Jurich may differ from the facts of this case, it is nevertheless instructive to examine the Court's approach in Jurich III. The Court reviewed its previous decision in Jurich I, which was reversed by our supreme court in the same batch of cases containing Ott I:
[In Jurich I] our original view was that the defendants' products began causing actual injury to Mr. Jurich's lungs within ten years of the delivery of the products, which was sufficient to give rise to a cause of action within the [Products Liability Act]'s statute of repose, even if a disease or illness did not manifest itself until well after the repose period had passed. We recognized that asbestos exposure causes actual damage to one's lungs long before a manifested disease may develop.
Jurich III, 824 N.E.2d at 782. The Jurich III court concluded that, in Ott I, our supreme court rejected the argument that these pre-manifestation physical changes were sufficient to constitute accrual of a cause of action under Indiana Code ยง 34-20-3-1. Id. Rather, asbestos-related "disease or illness" must have "actually manifested itself (and therefore could be diagnosed by a reasonably experienced physician)" within the repose period for a cause of action to accrue. Id. (emphasis omitted). Further parsing Ott I, the Court concluded that its "requirement of a `manifested' `asbestos-related illness or disease' that could have been diagnosed by a `reasonably experienced physician' refers to a disease that is a clinically-recognized symptomatic condition, or one that could have been detected by a competent physician conducting a routine examination of the patient." Id. at 783. Jurich III concluded that, on its record, the plaintiff failed to establish that "a reasonably experienced physician could have diagnosed . . . Mr. Jurich . . . with an asbe
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