Bradley A. Estabrook v. Mazak Corporation ( 2020 )


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  •                                                                         FILED
    Mar 02 2020, 11:50 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    IN THE
    Indiana Supreme Court
    Supreme Court Case No. 19S-CQ-590
    Bradley A. Estabrook,
    Plaintiff,
    –v–
    Mazak Corporation,
    Defendant.
    Argued: January 30, 2020 | Decided: March 2, 2020
    Certified Question from the
    United States District Court for the Northern District of Indiana
    Case No. 1:16-CV-87-HAB
    The Honorable Holly A. Brady, Judge
    Opinion by Justice Slaughter
    Chief Justice Rush and Justices David, Massa, and Goff concur.
    Slaughter, Justice.
    The Indiana Products Liability Act contains what we have held is a ten-
    year statute of repose. The statute requires a plaintiff to bring suit “within
    ten (10) years after the delivery of the product to the initial user or
    consumer.” The only exception is for an action accruing at least eight
    years but fewer than ten years after the product’s initial delivery. When
    that happens, a plaintiff can still sue within two years after accrual, even if
    more than ten years have elapsed since delivery. Because the statute has
    no other exceptions, we conclude its ten-year limitations period cannot be
    extended for any other reason—including a manufacturer’s post-sale
    repair, refurbishment, or reconstruction of a product.
    Background Facts and Procedure
    This case comes to us as a certified question from the United States
    District Court for the Northern District of Indiana. In 2014, Plaintiff,
    Bradley A. Estabrook, was injured while working on a machine owned by
    his employer, General Products Corporation. GPC bought this machine
    from Defendant, Mazak Corporation, which delivered it new in 2003—
    eleven years before Estabrook’s injury.
    In 2016, Estabrook filed a product-liability suit against Mazak in the
    Northern District of Indiana based on the court’s diversity jurisdiction,
    alleging the machine was unsafe due to a design defect. Indiana law
    governs this dispute, and both parties agree that strict application of the
    Act’s ten-year statute of repose would bar Estabrook’s suit. But the parties
    acknowledge a judicially created exception to the statute of repose,
    according to which rebuilding or reconditioning a product might create a
    “new product”, restarting the statutory clock. In a thoughtful opinion, the
    district judge observed that this exception has “questionable provenance”
    given that it originated in a federal case, that our court of appeals has
    incorporated it into Indiana law only in dicta, and that we have never
    interpreted the statute’s scope authoritatively. So the district court
    certified to us the following question of Indiana law:
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020          Page 2 of 11
    Can the statute of repose codified in Ind. Code § 34-20-3-1(b) be
    extended by post-sale repair/refurbishment/reconstruction of
    the product and, if so, what is the appropriate test to be used to
    determine whether the seller has done sufficient work to
    trigger the extension?
    We accepted the certified question under Indiana Appellate Rule 64 and
    now answer it in the negative.
    Discussion and Decision
    A. The Act’s statute of repose contains no exception for a
    product’s repair, refurbishment, or reconstruction.
    A plaintiff whose cause of action is subject to the Indiana Products
    Liability Act must bring suit within two years after the action accrues but
    not more than ten years after the product was first delivered to the buyer.
    Ind. Code § 34-20-3-1(b). The Act says the following:
    (b) Except as provided in section 2 of this chapter [concerning
    asbestos-related actions], a product liability action must be
    commenced:
    (1)     within two (2) years after the cause of action accrues; or
    (2)     within ten (10) years after the delivery of the product to
    the initial user or customer.
    However, if the cause of action accrues at least eight (8) years
    but less than ten (10) years after that initial delivery, the action
    may be commenced at any time within two (2) years after the
    cause of action accrues.
    
    Id. The statute
    is unambiguous. And because this is not an asbestos
    lawsuit, the statute contains only one exception of note—for an action
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    accruing “at least eight (8) but less than ten (10) years” after initial
    delivery. 
    Id. Yet even
    this limited exception does not apply here.
    Estabrook sustained his injury eleven years after his employer received
    the product, so his cause of action did not accrue “less than ten (10) years”
    after delivery.
    Despite the statute’s plain meaning and its inapplicable exception,
    Estabrook asks that we interpret the statute to include a further exception
    for a product that undergoes enough transformation—whether due to
    repair, refurbishment, or reconstruction—that it no longer qualifies as the
    original product. The point of this proposed interpretation is to treat the
    modified product as a “new product” that restarts the clock for suing.
    Estabrook’s argument is not without some basis in case law, though our
    Court has yet to adopt it. And no other court to have addressed our
    statute of repose has applied the proposed “new-product” exception to
    resurrect an otherwise time-barred suit. Thus, the district court below is
    correct in observing that there is “no clear controlling precedent” on this
    issue. Estabrook v. Mazak Corp., No. 1:16-CV-87-HAB, 
    2019 WL 5418117
    , at
    *1 (N.D. Ind. Oct. 22, 2019).
    For nearly forty years, a few courts have suggested a possible
    unwritten exception to our statute of repose for modified products. For
    example, in 1983, the Southern District of Indiana hypothesized in dicta
    that Indiana’s limitations period might restart when a manufacturer
    refurbishes a product and puts it back into the stream of commerce by
    reselling it. See Denu v. Western Gear Corp., 
    581 F. Supp. 7
    , 8 (S.D. Ind.
    1983). But the court had no occasion to decide the issue on the limited
    factual record before it. “The extent and nature of the manufacturer[‘]s
    alteration, modification or reconditioning of the product are certainly
    material questions of fact which have a bearing on whether the
    manufacturer has introduced a ‘new’ product into commerce and whether
    he should be held liable for defects in that product.” 
    Id. A decade
    later the Seventh Circuit, also in dicta, addressed the
    proposed Denu exception and broadened it to include any “reconstruction
    or reconditioning … which has the effect of lengthening the useful life of a
    product beyond what was contemplated when the product was first sold”.
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020            Page 4 of 11
    Richardson v. Gallo Equip. Co., 
    990 F.2d 330
    , 331 (7th Cir. 1993). Without
    such an exception, Judge Posner wrote, “the statute would create an
    inefficient incentive to reconstruct or recondition old products rather than
    build new ones, in order to reduce expected liability costs; for under such
    a regime a product rebuilt after ten years would be immunized from
    liability.” 
    Id. Again, however,
    the court had no occasion to decide the
    issue on the record before it because the manufacturer’s added safety
    features did not extend the product’s useful life. 
    Id. Also in
    1993, our court of appeals cited Denu as “instructive” in
    determining that the statute of repose would not bar suit “when a product
    has been reconditioned, altered, or modified to the extent that a ‘new’
    product has been introduced into the stream of commerce.” Wenger v.
    Weldy, 
    605 N.E.2d 796
    , 798 (Ind. Ct. App. 1993). But the court found no
    basis for affording relief on that record. Even if the proposed Denu
    exception had restarted the limitations period, the action still would have
    been untimely. 
    Id. And as
    recently as 2010, our appellate court reaffirmed its embrace of
    the Denu exception in the abstract. See Florian v. GATX Rail Corp., 
    930 N.E.2d 1190
    , 1200–02 (Ind. Ct. App. 2010). But the court held that merely
    repainting a product within the ten-year period of repose did not
    incorporate a “new component” to the product and thus did not restart
    the clock. 
    Id. at 1201–02.
    With these cases as precedent, Estabrook asks us to adopt a Denu-type
    exception that would restart the ten-year statute of repose when a
    manufacturer’s refurbishment efforts yield a “new product”. Such an
    approach would oblige courts to craft a test for assessing when a
    manufacturer’s modification to its product is sufficiently different in
    degree that the result is a new product, different in kind from its
    predecessor. We decline Estabrook’s invitation—both because the statute’s
    plain meaning does not permit it and because the task is not susceptible of
    a clear, bright-line legal rule.
    We begin by interpreting the statute “consistent with its plain meaning,
    by giving effect to what the legislature both said and did not say.” KS&E
    Sports v. Runnels, 
    72 N.E.3d 892
    , 907 (Ind. 2017). As we have noted, the
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    statute is straightforward. It contains only one exception irrelevant here.
    And it does not mention “repair”, “refurbishment”, “reconstruction”, or
    any comparable term that would authorize restarting the limitations clock
    when a manufacturer’s subsequent, post-delivery actions have
    purportedly transformed the “product” initially delivered. Given these
    textual constraints, we decline to interpret the statute of repose to include
    an exception for product modifications that the legislature could have
    enacted but did not. And, it goes without saying, the legislature can
    always amend the statute if it concludes, consistent with the Seventh
    Circuit’s opinion in Richardson, that sound public policy should not
    encourage manufacturers to modify existing products rather than build
    new ones by immunizing the former from liability. We express no view on
    these competing policy choices. They are for the legislature to weigh and
    decide. As we have noted previously, “[w]e neither applaud the wisdom”
    of the legislature’s policy choices, “nor condemn their folly.” 
    Id. We merely
    interpret the statute the legislature enacts. The disputed statute
    before us today does not permit Estabrook’s proposed “new-product”
    exception.
    Though unnecessary to our disposition today, we also address the
    thorny issue of line drawing. If a court were to craft a “new-product”
    exception, what might it say? The inquiry recalls a longstanding
    philosophical issue of “object identity”, which asks what properties define
    an object. Stated differently, the issue is at what point do changes to those
    properties create a new, distinct object. This is an ancient, still-unsolved
    riddle of metaphysics, which Plutarch made famous with his “Ship of
    Theseus Paradox”. Plutarch put the question this way: Suppose Theseus
    sails back from Crete and docks his ship in an Athenian port. Over time,
    the Athenians, determined to preserve the ship, replace board after rotted
    board until they finally replace the last original piece. Plutarch asks, “Is
    this a new ship?” When a confident pupil answers “yes”, Plutarch follows
    up by posing the difficult line-drawing question: “With which board did
    the ship become new?” Just as Plutarch’s pupil was forced to answer the
    second question, so too would any court having to define when,
    specifically, a “new product’ was delivered to the initial user. Because we
    decide this case based on the statute’s plain meaning, we need not try to
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020         Page 6 of 11
    resolve the line-drawing conundrum occasioned by this modern
    counterpart to Plutarch’s ancient riddle.
    We also reject Estabrook’s two other proposed grounds for adopting a
    “new-product” exception. The first ground—stare decisis—fails for the
    simple reason that no prior decision from our Court has embraced this
    exception, so there is nothing for us “to let stand”. It matters not that other
    courts—both state and federal—have paid lip-service to this exception.
    Such state and federal decisions may be persuasive, but they are not
    authoritative. And, relevant for stare decisis purposes, they are not binding
    on us, for we alone are the final arbiter of Indiana law and owe no
    deference to the interpretations of Indiana law pronounced by other
    courts.
    Estabrook’s other proposed ground for adopting a “new-product”
    exception—legislative acquiescence—also misses the mark. He argues that
    the legislature’s failure to act after other courts embraced the exception
    amounts to its implied endorsement of those views. Estabrook reads too
    much into the legislature’s silence. We do not know why the legislature
    did nothing in response to these decisions. Perhaps it is because, as
    Estabrook posits, the legislature believed these decisions to be correct. Or,
    alternatively, perhaps it is because the legislature was unmoved to act
    since no court to have embraced the exception granted relief by extending
    a plaintiff’s time to sue. We discern no basis for preferring one inference
    over another. Thus, Estabrook’s argument that the legislature has
    expressed its opinion through silence is better seen as the legislature’s
    failure to express an opinion at all.
    B. The legislature wrote “or” but meant “and”.
    Until now, we have confined our discussion to the plain meaning of
    Subsection 34-20-3-1(b)(2) and its limited exception for claims accruing
    more than eight years and fewer than ten years after the product’s initial
    delivery. But the careful reader will note another key feature of the statute
    warranting our attention and to which we now turn.
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    The conjunction separating the accrual and repose provisions in
    Subsections 1(b)(1) and 1(b)(2), respectively, is “or”—not “and”. Thus,
    read literally, the statute says that a product-liability action, to be timely,
    “must be commenced: (1) within two (2) years after the cause of action
    accrues; or (2) within ten (10) years after the delivery of the product to the
    initial user or customer.” I.C. § 34-20-3-1(b) (emphasis added). The plain
    meaning of the disjunctive “or” is that Estabrook’s product-liability action
    is timely if either of the statute’s two requirements is satisfied: either he
    sues within two years after his action accrues, or he sues within ten years
    after the product’s delivery to his employer.
    It is undisputed that Estabrook sued within two years after his claim
    accrued. His claim accrued when he was injured in November 2014. And
    he filed the underlying federal lawsuit in March 2016, well within the two-
    year accrual period. Given the statute’s disjunctive “or”, that alone should
    suffice to make his suit timely, though he sued more than ten years after
    the product’s delivery in 2003. On this reading, the disjunct does not limit
    the time for filing suit but extends it.
    But for nearly forty years, that is not how we have interpreted this
    statute. In Dague v. Piper Aircraft Corporation, 
    275 Ind. 520
    , 
    418 N.E.2d 207
    (1981), we rejected a literal construction of these disjunctive provisions
    and held that the “clear intention of the legislature … was to limit the time
    within which product liability actions can be brought.” 
    Id. at 524,
    418
    N.E.2d at 210. We explained that a contrary reading—interpreting “or”
    literally—would render part of the statute meaningless.
    Plaintiff correctly argues that the interpretation of the statute
    we now adopt, in effect, changes the disjunctive term “or,”
    which, of course, appears in the statute, to the conjunctive
    “and.” While terms of this type should ordinarily be given their
    literal and normal definition when it is apparent that the
    resulting meaning was intended, this Court is not bound to
    blindly give effect to the word “or,” when a disjunctive reading
    of the terms of the section would render meaningless a portion
    of the statute.
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020           Page 8 of 11
    
    Id. at 526,
    418 N.E.2d at 211.
    We reaffirm Dague’s interpretation of the statute as one of limitation
    and repose. And, like Dague, we agree that the statute’s best interpretation
    reads “or” as if it were “and”. We elaborate here only to make clear that
    we do not disregard the disjunctive “or” lightly or because doing so suits
    our own policy preferences. Rather, we conclude that that is the only
    interpretation consistent with the legislature’s stated preferences, as
    reflected in the entirety of its enactment.
    Two provisions undergird our conclusion. One is the last sentence in
    Section 34-20-3-1: “However, if the cause of action accrues at least eight (8)
    years but less than ten (10) years after that initial delivery, the action may
    be commenced at any time within two (2) years after the cause of action
    accrues.” In other words, if a plaintiff sues at least eight but fewer than ten
    years after the product’s initial delivery, the suit is still timely if filed
    within two years after its accrual. But if Subsections (b)(1) and (b)(2) are
    disjuncts, then this is always true—no matter what—and the “However”
    sentence adds nothing because Subsection (b)(1) alone ensures that a
    product-liability action is timely if commenced “within two (2) years after
    the cause of action accrues”. Stated differently, the “However” sentence
    would be surplusage if we were to interpret “or” literally. That is because
    the disjunctive “or” would treat as timely any action filed within two
    years after its accrual. And it would not matter how long it took the
    plaintiff to file suit after the product was first delivered. Under our
    surplusage canon, we prefer interpretations that give effect to every word
    and eschew those that treat some words as duplicative or meaningless.
    The other key provision is Subsection 34-20-3-2(f), which further
    establishes that Section 1 is a “repose period”—meaning that it does not
    extend a plaintiff’s time to sue but limits it. “Except for the cause of action
    expressly recognized in this section [concerning asbestos], this section
    does not otherwise modify the limitation of action or repose period
    contained in section 1 of this chapter.” I.C. § 34-20-3-2(f) (emphasis
    added). As discussed above, Subsection 1(b)(2) would not be a statute of
    repose if we interpreted “or” literally by treating Subsections 1(b)(1) and
    1(b)(2) as disjuncts. We would have to ignore Subsection 2(f)’s plain
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020           Page 9 of 11
    statement that Section 1 is a period of “repose” to give effect to the “or” in
    Subsection 1(b)(1).
    These provisions persuade us that this is one of those rare cases for
    invoking the absurdity doctrine. We apply the doctrine to give a statute
    “its obvious intended effect despite its plain text.” R.R. v. State, 
    106 N.E.3d 1037
    , 1042 (Ind. 2018). The doctrine is “strong medicine” because it
    “defeats even the plain meaning of statutes.” Calvin v. State, 
    87 N.E.3d 474
    ,
    477 (Ind. 2017). To apply the doctrine, we require a two-part showing that,
    in combination, sets “a very high bar.” 
    R.R., 106 N.E.3d at 1042
    . The first is
    that the text imposes an outcome that no reasonable person could intend.
    
    Id. We find
    that requirement satisfied here. Given what the legislature said
    throughout Chapter 34-20-3, it intended Subsection 1(b) as a period of
    repose that limits a plaintiff’s claim under the Act. We would undermine
    that intention were we to interpret the statute as written with the
    disjunctive “or”.
    We also find the second requirement satisfied here—that the judicial
    remedy is easy, limited to “changing or supplying a particular word or
    phrase whose inclusion or omission was obviously a technical or
    ministerial error”. 
    Id. (quoting A.
    Scalia & B. Garner, Reading Law: The
    Interpretation of Legal Texts 237–38 (2012)). The “fix” is what our
    forebears did in Dague—substituting “and” for “or” and thus reading the
    accrual and repose provisions in Subsections 1(b)(1) and 1(b)(2) not as
    disjuncts but conjuncts.
    Conclusion
    For these reasons, we answer the certified question in the negative and
    hold that Indiana Code section 34-20-3-1(b) is a statute of repose that
    cannot be extended by a manufacturer’s post-delivery repair,
    refurbishment, or reconstruction of the disputed product.
    Rush, C.J., and David, Massa, and Goff, JJ., concur.
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    ATTORNEYS FOR APPELLANT
    John C. Theisen
    Nathaniel O. Hubley
    Theisen & Associates, LLC
    Fort Wayne, Indiana
    ATTORNEY FOR AMICUS CURIAE
    INDIANA TRIAL LAWYERS ASSOCIATION
    Todd Barnes
    George & Farinas, LLP
    Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE
    Edward DeVries
    Wilson Elser Moskowitz Edelman & Dicker LLP
    Chicago, Illinois
    Edward M. O’Brien
    Wilson Elser Moskowitz Edelman & Dicker LLP
    Louisville, Kentucky
    ATTORNEYS FOR AMICUS CURIAE
    PRODUCT LIABILITY ADVISORY COUNCIL, INC.
    Jane Dall Wilson
    Bradley S. Boswell
    Faegre Drinker Biddle & Reath LLP
    Indianapolis, Indiana
    Indiana Supreme Court | Case No. 19S-CQ-590 | March 2, 2020   Page 11 of 11