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Friday, October 02, 2009

Ind. Law - "Liability, statutes of limitations, and statute of repose for asbestos-related illnesses"

That was the description of item #4 on the agenda of yesterday's meeting of the interim Commission on Courts. Reporter Eric Bradner was there and has a long story today in the Evansville Courier & Press. Some quotes:

Before she dies, Dorothy Kuykendall wants her day in court. * * *

This April, she learned that she is dying of cancer. Even though she hasn’t handled asbestos since 1975, her doctors say that exposure is the cause. * * *

State statute gives Hoosiers only 10 years to file a lawsuit after contact with harmful materials. Since Indiana doesn’t make an exception for those with latent diseases, she has no recourse.

Kuykendall can’t get workers’ compensation, and she can’t sue. Therefore, Medicare is on the hook for hundreds of thousands of dollars in medical expenses as a result of her disease.

“My family and the taxpayers are paying for the actions of the company that sold asbestos and my former employer,” she said. “It’s just not fair.”

Kuykendall was part of a group of advocates who asked a panel of state lawmakers on Thursday to pass legislation that would allow those who develop diseases caused by asbestos decades after being exposed to sue the companies responsible for the exposure. * * *

Under current Indiana law, those who are exposed to hazardous materials such as asbestos have up to 10 years to file a lawsuit.

However, asbestos diseases – most prominently, mesothelioma – can take much longer to develop, meaning that by the time the illness is discovered and diagnosed, the chance to take legal action has already passed.

Indiana is the only state that doesn’t have a law on the books allowing for exceptions for latent diseases, according to Russell Sipes, an attorney who testified Thursday and who represents clients who suffer from asbestos-related diseases.

The legislation he called for would maintain the state’s current 10-year window, but would carve out an exception that allows Hoosiers who are beyond that time frame to sue within two years of being diagnosed.

It’s an exception the General Assembly approved in 1989. However, a 2003 state Supreme Court ruling drastically altered the meaning of that law, rendering it essentially useless, Sipes said.

“It’s obvious – people who become ill never have a right to sue,” he said. “They become sick and often they die long after the time the Legislature has set for them to bring a cause of action to try to hold anyone responsible.” * * *

The committee’s chairwoman, Rep. Linda Lawson, D-Hammond, said she expects her panel to recommend that the General Assembly pass a bill allowing for the two-year exemption for latent diseases during the 2010 session.

Mike Smith of the AP has this story today.

Re the 2003 Indiana Supreme Court decisions, the ILB wrote about them on March 27, 2003 in an entry that began:
In a series of decisions issued Tuesday, 3/25/03, the Indiana Supreme Court analyzed the interaction between, and the constitutionality of, two statutes governing lawsuits alleging injuries caused by products (IC 34-20-3-1), and special rules in asbestos cases (IC 34-20-3-2). Here is the main opinion, Allied Signal, et.al. v. Ott, by Justice Sullivan, C.J. Shepard and J. Boehm concurring. J. Dickson dissented in a separate opinion, with J. Rucker concurring.

Posted by Marcia Oddi on October 2, 2009 08:59 AM
Posted to Indiana Law