Myers-Geyman Defendants Petition Supreme Court for Rehearing, State of Indiana Intervenes in Case and Separately Requests Rehearing

News

April 11, 2016

On April 1, 2016, the Myers-Geyman Defendants joined in filing a Petition for Rehearing, asking the Indiana Supreme Court to rehear arguments in the cases that recently rendered the Indiana Product Liability Statute of Repose unconstitutional. The same day, the State of Indiana, represented by the Attorney General, filed a brief as amicus curiae supporting Defendants’ petition and asked the Court to reconsider its decision on separate grounds.

Defendants’ Petition for Rehearing

Defendants urge that rehearing is necessary because the Court based its decision on two erroneous assumptions: (1) that the Court in AlliedSignal, Inc. v. Ott did not address the particular classification of asbestos plaintiffs challenged by the Myers and Geyman Plaintiffs; and (2) that the purportedly new classification challenged in Myers-Geyman creates two unequally-treated classes of asbestos plaintiffs. They argue that without these mistaken beliefs, the Court would not have found Ind. Code § 34-20-3-2 of the Indiana Product Liability Act (“Section 2”) unconstitutional. Additionally, Defendants argue that the Court’s categorization of asbestos and asbestos-containing products as “inherently dangerous” conflicts with the Court’s holding in PSI Energy, Inc. v. Roberts, violating the principle of stare decisis.

Defendants argue that without the Court’s errors, Section 2 is clearly constitutional. They maintain not only that the Court in Ott previously addressed and rejected the argument that Section 2 unconstitutionally creates two-unequally treated categories of asbestos plaintiffs, requiring adherence the Court’s prior holding, but also that the challenged classification simply does not create two unequally treated categories of asbestos plaintiffs. “The ‘class’ of asbestos plaintiffs who may assert claims against miners and sellers of raw asbestos subsumes the ‘class’ of asbestos plaintiffs who allege injury from asbestos-containing products,” they reason. Consequently, all plaintiffs are treated the same; every asbestos plaintiff may assert claims against miners and sellers of raw asbestos unimpeded by the 10-year statute of repose. In fact, in this very case, the Myers and Ms. Geyman each sued both the miners and sellers of raw asbestos and the manufacturers of the asbestos-containing products from which they allege exposure. Their cases demonstrate that all plaintiffs who assert allegations against the manufacturers of asbestos-containing products intrinsically have the opportunity to sue the company that mined and sold the raw asbestos used to create those asbestos-containing products. Because every plaintiff injured by an asbestos product manufacturer is also a plaintiff injured by an asbestos miner and seller, Plaintiffs’ attempt to create the appearance of two separate classes of asbestos claimants fails, and there is no classification for the Court to review under Article I, Section 23 of the Indiana Constitution. Without two separate classes, no disparate treatment can occur.

Furthermore, Defendants contend that rehearing is necessary because the Court “rebranded” asbestos and asbestos-containing products as “inherently dangerous” despite the fact that issue was never raised or argued by any party on appeal and contradicts the Court’s holding in PSI Energy, Inc. v. Roberts. There, the Court defined “inherently dangerous” as “work necessarily attended with danger, no matter how skillfully or carefully it is performed.” It rejected the plaintiff’s assertion that asbestos and asbestos-containing products fit that description, explaining that being “perilous” is not enough. An activity, including working with asbestos, is not intrinsically dangerous “[i]f proper precautions can minimize the risk of injury,” the Court explained. Moreover, the “inherently dangerous” classification is currently being litigated by the Myers in a separate appeal in this action, and the Court denied direct transfer, which would allow it to immediately decide the issue rather than wait to hear it on appeal. Defendants urge that “[o]verturning a binding Indiana Supreme Court decision without the benefit of full briefing and argument fits squarely within the category of ‘injustice’ and ‘stealth overruling’ criticized by Justice Massa in his dissent.”

The State of Indiana’s Petition for Rehearing

The State asserts that it has a compelling interest in defending its statutes, and state law entitles the Attorney General to be heard when the constitutionality of a state statute is called into question. It posits that both the Court and the party filing a notice of appeal are required to notify the Attorney General of a constitutional challenge to an Indiana statute so it can intervene and present evidence and argument defending the statute (I.C. 34-33.1-1-1(a); App. R. 24(A)(1)). Their failure to comply with these statutes mandates rehearing and a briefing schedule that will allow the State to do so. The State did not have an opportunity to defend the statute at either the trial or appellate level and only became aware of the case after the Court published its decision. The Attorney General stated that he was hesitant to invest substantial state resources to developing constitutional arguments after judgment has already been issued without guarantee that the Court will order additional briefing allowing the State to be heard.

The State further urges that a briefing schedule is necessary to allow both Plaintiffs and Defendants sufficient time to respond to its arguments because its interests are not identically aligned with either party. Accordingly, the State believes the only remedy for the Court’s and parties’ malfeasance is to grant rehearing and issue a briefing schedule inclusive of Plaintiffs, Defendants, and the State.

Plaintiffs’ Response to Defendants’ Petitions for Rehearing

Response to the State’s Petition

Plaintiffs Myers and Geyman filed responses asking that both the State’s and Defendants’ petitions for rehearing be denied. They primarily focus on the State’s petition, countering that it was given notice of the case on March 4, 2015, when the trial court clerk served the Attorney General with the Notice of Completion of Clerk’s Record. However, they dispute that the State was entitled to notice. Plaintiffs further assert that the State’s failure to identify any new arguments for consideration by the Court beyond those argued by Defendants operates as a waiver of any right to rehearing under App. R. 54(E), which requires it to “state concisely the reasons the party believes rehearing is necessary.”

They argue that because I.C. 34-33.1-1-1(a) is silent on the manner by which the Court must provide notice to the Attorney General, the method of such notice is directed by App. R. 10(C), which requires only that the trial court clerk “shall issue and file a Notice of Completion of Clerk’s Record with the Clerk and shall serve a copy on the parties to the appeal in accordance with Rule 24 to advise them that the Clerk’s Record has been assembled and is complete.” As a result, they say, the Court’s duty was satisfied on March 4, 2015. The Attorney General then could have reviewed the docket and determined for himself that Constitutional issues were implicated in the case. According to Plaintiffs, the State waived its right to defend Section 2 by failing to review the Appellate record.

Furthermore, Plaintiffs argue that neither party was required to serve the Attorney General with notice of the appeal under App. R. 24(A)(1)(e). The statute only requires a party to serve such notice in a civil case if the appeal is from a “final judgment declaring a state statute unconstitutional in whole or in part.” Plaintiffs advance that the Geyman appeals stemmed from interlocutory, not final, judgments, and the Myers decision, though final, did not declare a state statute unconstitutional. Moreover, Plaintiffs contend that even if the Court finds the parties were required to give notice, their omission was harmless because the Court had already given the Attorney General notice. They believe that granting rehearing would be prejudicial to Plaintiff Myers, as he has already outlived his life expectancy under his disease.

Response to Defendants’ Petitions

In response to Defendants’ Petitions, Plaintiffs urge that the Court has already considered and declined to adopt Defendants’ position that the Ott Court previously upheld the constitutionality of the classifications challenged by Plaintiffs. In addition, Plaintiffs posit that Defendants misconstrue the Court’s decision in PSI Energy v. Roberts, as the decision only addresses whether asbestos is inherently dangerous to establish strict liability for premise owners who hire independent contractors to work with asbestos and cannot be applied to product liability cases. Accordingly, Roberts does not implicate stare decisis.

Finally, Plaintiffs reason that Defendants’ Petitions should be denied on policy grounds. They believe Defendants are improperly seeking rehearing as an opportunity to argue the “inherently dangerous” issue currently before the Court of Appeals in the Myers appeal. They further advise that were the Court to grant Defendants’ and the State’s petitions, Chief Justice Rush’s concerns expressed in her dissent that the Court is creating the “inevitable perception” that a change in Justices will lead to a change in the law will immediately be realized, given the author of the Court’s opinion in Myers-Geyman will be retiring this spring, likely before the case could be reheard.

Possible Outcomes

The Indiana Appellate Rules prohibit a petitioner from filing a reply brief in support of its Petition for Rehearing. Therefore, Defendants and the State will not be permitted to respond to Plaintiffs’ arguments unless the Court grants rehearing. If the Indiana Supreme Court denies both petitions, the Court’s current decision will stand, and the Product Liability Statute of Repose will no longer exist in Indiana for asbestos products cases.

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