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Rebecca Nickelson, HeplerBroom Attorney Obtains Motion for Summary Judgment

JUDGE HARRISON RULES ON MOTION TO APPLY INDIANA STATUTE OF REPOSE AND RELATED MOTION FOR SUMMARY JUDGMENT

In what appears to be Judge Harrision’s last act as Madison County’s asbestos judge, he granted Summary Judgment based upon Indiana’s Statute of Repose.  A statute of repose is similar to a statute of limitations in that it limits the amount of time in which a plaintiff may bring certain actions.  A statute of limitations only begins to run when a cause of action has accrued, meaning that all of the elements of the cause of action have taken place and the plaintiff is or should be aware of their injury.  However, a statute of repose sets a time period after which the cause of action cannot be brought regardless of whether the cause of action has accrued.  It is said that a statute of repose stops the cause of action from ever actually arising.  In the Wible matter, Hepler Broom filed a motion to apply the Indiana Statute of Repose and a corresponding Motion for Summary Judgment based on the same. Rebecca Nickelson argued these motions on behalf of Terex and Ingersoll-Rand. Motions and supporting briefs were drafted by Kendall Canfield, Timothy Assouad, and Rebecca Nickelson. Opposing counsel was the firm Napoli, Bern, Ripka and Skolnik.  The Indiana Statute of Repose gives a plaintiff ten years to file suit from the date a product was first delivered to the initial end user or consumer.  The motions were filed on behalf of Terex Corporation and were joined by Ingersoll-Rand Company and P & H Mining Equipment Incorporated.  In Wible, the decedent lived and worked most of his life in Indiana.  Further, the decedent spent the bulk of his career working as an operating engineer.  Almost all of his worksites were in Indiana.  However, the record indicated at least one and possibly more worksites in Illinois.  The record was devoid of any specific product identification or exposure evidence after 1974. 

In response to the motions, the plaintiff argued that Illinois had the most significant relationship to the case because of the one worksite that was identified and because of various contacts that all defendants had in the case.  Plaintiff’s counsel also argued that the statute of repose should not run from 1974, but rather from 1998 when the record indicated that the plaintiff had stopped working.  Further, after receiving the motions, the plaintiff filed an amended complaint that added a claim that an additional cancer diagnosed in 2002 and not originally plead in the previous complaint.  Under Indiana law, the statute of repose period is tolled if a plaintiff could have been diagnosed with an asbestos related disease during the repose period but was unaware of the condition.  Plaintiff then argued that the statute of repose period was tolled because the plaintiff was unaware that this additional cancer was asbestos related despite the 2002 diagnosis.

Judge Harrison agreed with Terex Corporation that the Indiana Statute of Repose applied.  Additionally, he granted the related motion for summary judgment.  Ultimately, Judge Harrison held that the record was devoid of any product identification after 1974 and the statute of repose period ended in 1984.  He noted that there was no actual evidence of when the products had been delivered to the final end user or consumer, but that any such products had to have been delivered prior to the time the plaintiff used them.  He also noted that even if the ten year period began to run in 1998 and was tolled because of the other cancer, the cause of action related to that cancer accrued under Indiana law at the time of the diagnosis, hence the Indiana two year statute of limitations would have run prior to the 2012 filing of the lawsuit anyway.