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Jurich v. John Crane3/31/2005
experienced physician would not have diagnosed Mr. Jurich or Mr. Serna with mesothelioma until after the statute of repose period had expired. Additionally, the uncontradicted expert opinion in the designated materials is that it would have been highly dangerous, unethical, and medically inappropriate to perform on an asymptomatic individual, such as Mr. Jurich or Mr. Serna, the invasive testing necessary to detect the precancerous changes in the person's cells caused by asbestos. On the basis of this evidence, we conclude that there are no disputed material facts and that the Appellants failed to establish a reasonably experienced physician could have diagnosed either Mr. Jurich or Mr. Serna with an asbestos-related disease or illness within the ten-year statute of repose period, as we believe our supreme court intended the Ott test to be applied. Thus, they have failed to demonstrate that the PLA statute of repose is unconstitutional as applied to them.
The Appellants also argue that the PLA statute of repose imposes an impossible condition on their access to the courts to pursue a tort remedy, in contravention of Article 1, ยง 12 and Martin v. Richey. The author of this opinion was sympathetic to their position, as reflected in Jurich I. However, a majority of our supreme court rejected that position in Ott. The Appellants are essentially asking us to contravene that case. As an intermediate appellate court, we cannot revisit, reverse, or otherwise attempt to circumvent the holding of Ott. See Red Arrow Ventures, Ltd. v. Miller, 692 N.E.2d 939, 946 (Ind. Ct. App. 1998), trans. denied. Accepting the Appellants' position would essentially turn Ott's narrow "exception" to the PLA statute of repose into a very broad one, applicable in most if not all asbestos cases, and mark a return to the reasoning of Jurich I. We cannot do that, and are bound by the precedent set by our supreme court.
Conclusion
The Appellants failed to present any evidence that a "reasonably experienced physician" could have diagnosed either Mr. Jurich or Mr. Serna with "an asbestos-related illness or disease" within ten years of the last delivery of any of the Appellees' asbestos-containing products. The trial court, therefore, properly concluded that there are no genuine issues of material fact and that the Appellees are entitled to summary judgment as a matter of law because the Appellants' claims are time-barred by the PLA statute of repose. We affirm.
Affirmed.
MAY, J., and DARDEN, J., concur.
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