                                                                        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:




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      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”.



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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


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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.



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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



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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




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