Indiana Law Review The Disappearing Rights of Plaintiffs Under a Legal Disability Roger L. Pardieck* I. Introduction Historically, limitations on actions were generally held to be in derogation of the common law and were looked upon with disfavor. • As we moved into the twentieth century, the courts began to look favorably upon statutes of limitation as a method to prevent claims against governmental entities and to encourage diligence among plain- tiffs.^ In the 1970's, special interest legislation produced Hmitations on the rights of children; these statutes have been liberally construed by the courts in Indiana.^ In Indiana, as well as other states, the trend appears to limit actions through arbitrary time constraints. One exception to this trend was the adoption of a modified discovery rule in Barnes V. A.H. Robins Co., Inc.,"^ where the Indiana Supreme Court recognized that the strict application of a statute of limitations may create, in some instances, a great and intolerable injustice.^ As limitations on actions crept into the early English common law, savings statutes were passed which protected children and others under Managing attorney, Law Offices of Roger L. Pardieck, Seymour, Indiana. A.B. Indiana University, 1959; LL.B., Indiana University School of Law—Bloomington, 1963. 'Shideler v. Dwyer, 417 N.E.2d 281, 283 (Ind. 1981). Statutes of limitations, as we know them, originated in England. Originally, there was no Hmitation on when a person could bring an action against another for a particular wrong. Eventually, statutes of limitation were utiHzed. At the same time, rules developed which prevented the statute from running during a period when a person was under some legal disability. The rules were thought necessary to protect the individual's right to seek redress for the wrong done against him after his disability was removed. Infants were among the individuals protected under these rules. W. Ferguson, Statutes of Limitation Saving Statutes 7-59 (1978). ^Shideler, 417 N.E.2d at 283; Spoljaric v. Pangan, 466 N.E.2d 37, 43 (Ind. Ct. App. 1984). 'See Shideler, 417 N.E.2d at 283. M76 N.E.2d 84 (Ind. 1985). Tor example, many courts now apply discovery rules in various types of actions. The Indiana Supreme Court recently adopted such a rule for cases in which the plaintiff suffered an injury as the result of protracted exposure to a foreign substance. Id. In these types of cases, the statute of limitations begins "to run from the date the plaintiff knew or should have discovered that she suffered an injury or impingement, and that it was caused by the product or act of another." Id. at 87-88. The court declined to extend the rule to all types of tort cases but did not preclude that possibility from happening in the future. Id. at 87. 385 386 INDIANA LA W REVIEW [Vol. 20:385 a legal disability from the harsh result of having their rights extinguished before they were legally competent to exercise them.^ Similarly, many states in this country enacted savings statutes to preserve the actions of those under a legal disability."^ While this was once true in Indiana, the legislation of the seventies, coupled with judicial interpretations of this legislation, has whittled away at the protection provided children and those under a legal disability. A recent illustrative case is Orr v. Turco Manufacturing Co., Inc.,^ in which the Indiana Court of Appeals found that the products liability statute^ requiring minors to bring a products liability claim within two years from the date of the injury, regardless of the minor's age, barred the claim of an injured child. As shall be seen from the legislative history discussed later in this Article, the legislation was squarely aimed at limiting liability without regard to whether the case was good or bad and without consideration for its impact on children. '° Without more distance between ourselves and the issue, it may be impossible definitively to determine the present effect of the trend to eliminate rights of the legally disabled, but it is pertinent to question the direction in which we are headed. II. The Granting of an Extension of Time In Indiana, an infant is permitted to bring an action "(1) in his own name; (2) in his own name by a guardian ad litem or a next friend; [or] (3) in the name of his representative," if the representative has been appointed by the court. ^' By statute, "[a]ny person being under legal disabilities when the cause of action accrues may bring his action within two (2) years after the disability is removed. "'^ This provision does not, in the literal sense, stop the statute of limitations from running; rather, the statue of limitations begins to run when the cause of action accrues. '^ However, because of his minority status, the child is given two years after attainment of majority to bring his cause of action if the full statute of limitations runs while he is still a minor. ^"^ Yet, in the last decade, this extension of time has been narrowed by legislative and court action. ^See W. Ferguson, supra note 1, at 13-14. 'See id. at 7-59. «484 N.E.2d 1300 (Ind. Ct. App. 1985). ^IND. Code § 33-1-1.5-5 (1982). ^°See infra text accompanying notes 45-48. "Ind. R. Tr. P. 17(c) (1986). '^Ind. Code § 34-1-2-5 (1982). This does not prohibit children from pursuing an action while they are still minors. Rather, it merely preserves their right to bring an action within two years of their attaining majority status. Norris v. Mingle, 217 Ind. 516, 29 N.E.2d 400 (1940). '^King V. Carmichael, 136 Ind. 20, 35 N.E. 509 (1893). ''Id. 1987] LEGAL DISABILITY 387 III. Taking Away the Child's Safety Net A. The Products Liability Act In 1978, the Indiana legislature passed the Indiana Products Liability Act, which included the following: This section applies to all persons regardless of minority or legal disability. Notwithstanding I.C. 34-1-2-5, any product liability action must be commenced within two years after the cause of action accrues or within ten (10) years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight (8) years but not more 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.'^ This statute became the focus of the Indiana Court of Appeals' decision in Orr v. Turco Manufacturing Co., Inc.^^ B. The Orr Decision In Orr, Nicolette Orr was injured on a swing set in 1979 when she was ten years old. Paul Orr was appointed guardian of Nicolette 's estate on June 23, 1983. On June 30, 1983, an action was filed against Turco, the manufacturer of the swing set. In response, Turco filed a motion to dismiss, asserting that the action had been filed more than two years after the injury occurred and was, therefore, barred by the products hability statute of limitations. Orr attempted to argue that Indiana Code section 33-1-1.5-5 did not apply to persons with a legal disability or minority status. In addition, Orr argued that courts had the authority and responsibility to determine when a cause of action accrued. ^^ In rejecting both of these arguments. '^ND. Code § 33-1-1.5-5 (1982) (emphasis added). Prior to the enactment of this statute, minors had two years after attaining majority to file product liability actions. See D'Andrea v. Montgomery Ward & Co., Inc., 571 F.2d 403 (7th Cir. 1978) (applying Indiana law). '^484 N.E.2d 1300 (Ind. Ct. App. 1985). "Id. at 1302 (relying on the Indiana Supreme Court's decision in Barnes v. A.H. Robins, Inc., 476 N.E.2d 84 (Ind. 1985)). In Barnes, the plaintiffs had utilized a con- traceptive device known as the Dalkon Shield. Each plaintiff had suffered injuries in 1972- 1979 due to the use of the device but did not discover the connection between their use of the shield and their illnesses until they saw a 60 Minutes program in 1981. The plaintiffs, upon learning of the association between the Dalkon Shield and the problems they suffered, filed actions in 1981. The supreme court was asked to determine when the statute of limitations would begin to run in such actions, and in response to this inquiry adopted the discovery rule. Barnes, 476 N.E.2d at 87. 388 INDIANA LAW REVIEW [Vol. 20:385 the court of appeals noted that the statute in question was clear and unambiguous and provided no exceptions for either minority or legal disability.'^ Therefore, the court was bound to follow the mandate of the legislature and bar Orr's claim which was brought more than two years after the injury was suffered.'^ Perhaps more importantly, the court also rejected Orr's argument that the statute violated article 1, section 12 of the Indiana Constitution. ^^ In doing so, the court rehed on two prior Indiana decisions, Dague v. Piper Aircraft Corp}^ and Rohrabaugh v. Wagoner.^^ C. The Dague Decision In Dague, the Indiana Supreme Court was asked to determine whether the products liability statute of limitations violated article 1, section 12 of the Indiana Constitution.^^ This section provides in part that: "All '^Orr, 484 N.E.2d at 1302. '^M The court of appeals subsequently determined in a companion case that the intent of the legislature was so clearly expressed that an award of attorney fees was proper. Orr v. Turco Mfg. Co., Inc., 496 N.E.2d 115 (Ind. Ct. App. 1986). The court determined that in Hght of the statutory language, Orr could not in good faith argue that minors were not covered by the two year provision in the products liabiUty statute. The arguments made by Orr were deemed meritless. The appeal was found "to be frivolous because wholly without merit, and thus presumptively taken in bad faith." Orr, 496 N.E.2d at 118. The award of attorney fees in this action creates an untenable problem for plaintiffs' attorneys. Although Orr's argument based on the wording of the statute may have been tenuated, Orr also asserted that the statute violated the Indiana Constitution. The products liability statute of hmitations had previously withstood a constitutional attack but had not been questioned with regard to minors' claims. Orr, 484 N.E.2d at 1302; see also Dague V. Piper Aircraft Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 313 (1981). Even if Orr inartfully presented her case, and that is not to say that she did, would this fact make the case so meritless as to justify an award of attorney fees especially when similar statutes had been successfully attacked in other states? The court of appeals relied on the fact that Indiana's medical malpractice statute had been upheld with respect to minors and that the decision in that case was dispositive of the issue raised by Orr. Orr, 484 N.E.2d at 1303 (citing Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891 (1980)). Because the court believed the decision was dispositive, it determined that Orr's appeal was meritless. This decision leaves attorneys in the position of having to decide whether to launch a constitutional attack on a statute where another, but not identical, statute has been upheld and risk being assessed for attorney fees or forgo the attack. Presumably, the assessment of attorney fees is intended to discourage "frivolous" lawsuits. The extent to which it will accomplish that objective may never be known; however, it is certain to have a chilling effect on lawyers when they consider taking on controversial litigation. ^°Or/-, 484 N.E.2d at 1302. ^'275 Ind. 520, 418 N.E.2d 207 (1981). ^^274 Ind. 661, 413 N.E.2d 891 (1980). ^^In Dague, the plaintiff filed a four count complaint against Piper Aircraft seeking to recover damages for the wrongful death of her husband. Her husband had died as a 1987] LEGAL DISABILITY 389 courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law."^'* The plaintiff argued that the ten-year limitation contained in Indiana's product liability statute cut off her actions based on the theories of strict liability and negligence without providing an alternative remedy. ^^ This effectively deprived her of access to the courts and therefore, the provision violated article 1, section 12 of the Indiana Constitution. ^^ The supreme court disagreed. The court reasoned that the legislature is entitled to change the common law^^ and that the legislature was within its authority in enacting legislation that narrowed the time frame in which an action could be brought. The court concluded that there is no vested right in a rule of common law and that the right to bring a common law action is not a fundamental right. ^^ The court ultimately decided that the Products Liability Act did not contravene article 1, section 12 of the Indiana Constitution. ^^ Significantly, the court never discussed the portions of the statute dealing with minors and persons under a disability. This issue was never presented to the court. The Dague case merely held that in general, the statute of repose was constitutional. Because the Dague court did not consider the constitu- tionality of the clause making the limitation applicable to children, the Dague decision should not have been considered dispositive of the Orr case. D. The Child and the Medical Malpractice Action Rohrabaugh v. Wagoner,^^ although instructive, did not deal with result of injuries sustained when the Piper Pawnee aircraft he was piloting crashed on July 7, 1978. The decedent passed away on September 5, 1978, and his wife filed her complaint on October 1, 1979, alleging that the decedent's injuries and death were caused by a defective condition in the aircraft. It was undisputed that the aircraft had been manufactured in 1965 and placed into the stream of commerce on March 26, 1965. A federal district court granted Piper Aircraft's motion for summary judgment on the basis of Indiana's ten-year statute of repose. On appeal, the Seventh Circuit certified several issues to the Indiana Supreme Court, including the issue of whether the ten-year statute of repose violated the Indiana Constitution. Dague, 275 Ind. at 522-23, 418 N.E.2d at 209. ^^IND. Const, art. I, § 12 (1851, amended 1984). ^^Dague, 275 Ind. at 529, 418 N.E.2d at 212. The statutory provision provides in pertinent part: "[A]ny product liability action . . . must be commenced within two [2] years after the cause of action accrues or within ten [10] years after the delivery of the product to the initial user or consumer . . . ." Ind. Code Ann. § 34-4-20A-5 (Burns Supp. 1986) (emphasis added). ''Dague, 275 Ind. at 529, 418 N.E.2d at 212. ''Id., 418 N.E.2d at 213. ''Id. ''Id. at 530, 418 N.E.2d at 213. ^°274 Ind. 661, 413 N.E.2d 891 (1980). 390 INDIANA LAW REVIEW [Vol. 20:385 the products liability statute questioned in Orr. Rather, Rohrabaugh dealt solely with the medical malpractice statute of limitations.^' The plaintiff in Rohrabaugh was a minor between age six and eighteen, both when her action was brought and when the alleged acts of malpractice occurred. ^2 The medical malpractice statute of limitations provided that minors under the age of six had until their eighth birthday to pursue an action while all other minors had only two years "from the date of the alleged act, omission or neglect" to pursue their action." The plaintiff brought her malpractice action in 1979, more than two years after the enactment of the medical malpractice statute and more than two years after the effective date of the Act.^^ The trial court dismissed the plaintiff's action as being untimely filed and the supreme court affirmed that decision. The plaintiff asserted that the medical malpractice statute violated the rights guaranteed by both the fourteenth amendment of the United States Constitution and article 1, sections 12 and 23 of the Indiana Constitution.^^ The court first noted that the legislature was not required to exempt children from the operation of statutes of limitation. ^^ The ^^Id. Rohrabaugh was not the first Indiana case to address the medical malpractice statute's limitation of minors' claims. In Chaffin v. Nicosia, 261 Ind. 698, 310 N.E.2d 867 (1974), the Indiana Supreme Court determined that the statute of limitations in the old medical malpractice statute did not override the special statute of limitations for persons under a legal disability. Id. at 703, 310 N.E.2d at 870. The court noted that requiring a minor to file his action within the two-year period provided by the medical malpractice statute would be "extraordinarily harsh" and inconsistent with the legislature's intention of creating a legal disability to protect minors. Id. at 704, 310 N.E.2d at 871, However, after this ruling, the medical malpractice statute was amended to set up the current system. See infra note 33 and accompanying text. Nevertheless, the court's focus on the impact on children and their right to access to the courts is instructive in reviewing the present situation, 3^274 Ind, at 662, 413 N,E,2d at 892. "M at 663, 413 N,E.2d at 892 (quoting Ind. Code § 16-9.5-3-1 (1976)). The Act also provided that any action which accrued before the enactment of the statute had to be brought within: "(a) Two years of the effective date of this article; or (b) The period described in section 1 of this chapter." Ind. Code § 16-9,5-3-2 (1976), The plaintiff had missed both of these deadlines, Rohrabaugh, 274 Ind, at 663, 413 N,E,2d at 892, ''Rohrabaugh, 21A Ind. at 663, 413 N.E.2d at 892. 'Ud., 413 N,E,2d at 893, Article 1, section 23 of the Indiana Constitution states: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which upon the same terms, shall not equally belong to all citizens," Ind, Const, art. I, § 23. ^^274 Ind. at 664, 413 N.E.2d at 893 (citing Sherfey v. City of Brazil, 213 Ind, 493, 13 N.E.2d 568 (1938), in which the court stated that neither infancy nor incapacity suspended the requirement to give notice of injury to a municipality as required by statute. Again, this decision made no examination of the historical use of savings statutes with regard to minors. It merely stated that children, like adults, had to meet the statutorily imposed notice provision.) 1987] LEGAL DISABILITY 391 court then decided that children were not a suspect class and did not require strict judicial scrutiny.^'' Therefore, the constitutional analysis utilized by the court only required the classification in the statute to "be reasonable, not arbitrary," and that it ''rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated ahke."^^ Unfortunately, the court did not appear then to consider the peculiar situation in which all children are placed in seeking redress for an injury. Rather than examining children's need for access to the legal system, the court focused entirely on the purpose of the legislation, i.e. to reduce physicians' exposure to medical malpractice suits by limiting the time period in which suits could be brought and thereby to assure the avail- ability of malpractice insurance at a reasonable cost.^^ The legislature apparently feared that health care services would be withdrawn from the public if such measures were not taken. "^^ In weighing the benefit of such a limitation to the medical profession and insurance industry against the burden placed on children, the court stated: [T]he Legislature: 'may well have given consideration to the fact that most children by the time they reach the age of six years are in a position to verbally communicate their physical com- plaints to parents or other adults having a natural sympathy with them. Such communications and the persons whom they reach may to some appreciable degree stand surrogate for the lack of maturity and judgment of infants in this matter. The Legislature may well have considered the fact of some importance that many health care providers are specially trained professional persons meeting state standards for licensing, and are, therefore, entitled to a special degree of trust. '"^^ The court concluded that the classification utilized in the medical mal- practice statute was reasonably related to the purpose of the legislation and that "children of this class and adults are similarly circumstanced ''Rohrabaugh, 274 Ind. at 666, 413 N.E.2d at 893-94. ^«/(c/. (quoting Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 392, 404 N.E.2d 585, 597 (1980)). ^'274 Ind. at 666, 413 N.E.2d at 894. *°Id. This again raises the interesting question of whether the recurring insurance crises are caused by 1) the tort system, 2) the unrestrained investment practices of the insurance industry, 3) the competitive forces of the marketplace in which the insurance industry operates, 4) the insurance industry itself for its own benefit, or 5) all of the above. ''Id. at 667, 413 N.E.2d at 895 (quoting Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404, 404 N.E.2d 585, 604 (1980)). 392 INDIANA LA W REVIEW [Vol. 20:385 with regard to their abihty to bring malpractice actions.'"*^ Therefore, the statute was held to be constitutional and ''consistent with the pro- tection offered by our State and Federal Constitutions to equal protection of the laws."'^^ Notably, the Rohrabaugh decision dealt solely with the statute of limitations in the medical malpractice statute. When evaluating the statute, the court had to determine whether the provisions of the statute were a reasonable method of dealing with the perceived health care and insurance crisis. This evaluation involved an examination of the provision with that particular goal in mind. The decision does not stand for the proposition that any statute of limitations is per se constitutional. The Orr decision, however, treated the Rohrabaugh case as controlling prec- edent even though the goals of the two statutes were not the same. The products liability statute was passed because of an alleged insurance crisis. No public service such as health care was involved. Thus, the determination in Rohrabaugh that limiting minors' rights was reasonable for the medical malpractice statute should not mean the same was true for the products liability statute. The court in Orr simply relied on the Rohrabaugh decision without conducting a separate analysis of the different factors involved in the products Uability legislation. In fact, the court refused to consider the Minutes of the Select Joint Committee on Products Liability on the basis that the language in the statute was unambiguous. "^"^ This raises a question regarding the role of the Minutes and whether legislative history is relevant in determining whether the limitation on the child's right to bring an action was a reasonable method of dealing with the problem confronting the legislature. A review of the Minutes would have revealed that the major concern was the ten-year limitation and that the enactment of the limitation was not expected to decrease insurance rates paid by Indiana manufacturers, although that was the stated goal of the legislation."^^ The insurance industry nevertheless urged the passage of the limitations so that Indiana "could serve as an example to the other states in drafting their laws.'"^^ It was acknowledged that it is "fitting and appropriate for counsel or injured parties to seek to make recoveries under the tort system and it is proper for them to have the tools with which to bring their cases. '"^^ ^^274 Ind. at 667, 413 N.E.2d at 895. ''^274 Ind. at 668, 413 N.E.2d at 895. Considering the specific reasons for the passage of the medical malpractice statute, Rohrabaugh should not have been treated as being dispositive of the Orr case without an independent analysis of the purpose of the products statutes. ^Orr, 484 N.E.2d at 1302. "^Minutes of the Select Joint Committee on Products Liability (Sept. 19, 1977). '''Id. '"Minutes of the Select Joint Committee on Products Liability (Sept. 1977) (statement presented by William F. Burfeind, Asst. Counsel, American Insurance Assoc.) 1987] LEGAL DISABILITY 393 Yet, the statute takes the tools needed for seeking redress away from minors. Although the committee acknowledged that it might be appro- priate to give children additional time to file an action, no such provision was included in the final draft /^ A review of the evidence presented to the committee fails to reveal the basis for excluding such a provision. No testimony appears to have been given concerning the impact such a provision would have had on the "perceived crisis" or the impact on children of faiUng to protect their access to the courts. An examination of the legislative history provides substantial evidence for the contention that the purpose of the legislation could have been accomplished without encroaching on the rights of children. Other courts have examined similar legislative histories to determine the impact of such legislation on children and have concluded that the elimination of the historic savings provision was unreasonable. E. An Alternative Analysis Illustrative of cases in which courts have examined legislative histories in construing statutes of Hmitations similar to that in Indiana's Products Liability Act is Sax v. Votteler,^^ in which the Texas Supreme Court determined that the statute of limitations applied to minors' claims in medical malpractice actions was unconstitutional.^^ The Texas statute, which is similar to that of Indiana, provided that minors under the age "^Minutes of the Select Joint Committee on Products Liability (Oct. 14, 1977). The products liability statute is a political response to the alleged insurance crisis. One cannot doubt the reality of the crisis today as well as at the time this statute was passed. Yet its cause is another matter. Some point to a litigation explosion and frivolous lawsuits as the cause, but the allegation is yet to be proven. The Justice Department set up the Willard Commission to study tort reform. It reported a 758