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ATTORNEYS FOR APPELLANT Raymond L. Faust Cynthia E. Lasher Indianapolis, Indiana

ATTORNEY FOR APPELLEE Michael J. Sobieray Carmel, Indiana

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Indiana Supreme Court
_________________________________ No. 30S01-0801-CV-28 TECHNISAND, INC.,

In the

FILED
Dec 24 2008, 1:26 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. JESSIE MELTON, PERSONAL REPRESENTATIVE OF THE ESTATE OF PATTY MELTON, DECEASED, Appellee (Plaintiff below). _________________________________ Appeal from the Hancock Circuit Court, No. 30C01-0310-CT-687 The Honorable Richard D. Culver, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 30A01-0608-CV-334 _________________________________ December 24, 2008 Sullivan, Justice. This is the second of two cases we decide today involving the interaction of the statute of limitations provision of Indianas Wrongful Death Act ("WDA"), and the statute of limitations provision for an underlying substantive tort claim. Here, the limitations period under the WDA expired before the lawsuit was filed, but the limitations period for the underlying products liability claim had not. Our decision in Ellenwine v. Fairley dictates that the claim was not timely filed. 846 N.E.2d 657, 666 (Ind. 2006).

Background Both parties agree on the basic facts of the case. Patty Melton ("Patty") was diagnosed with chronic myeloid leukemia in December, 2001. Until December, 2001, she worked for Keihin IPT Manufacturing, Inc. ("KIPT"), as an assembler and inspector. Patty died from leukemia on July 25, 2002. Her husband, Jessie Melton ("Jessie"), is the personal representative of her estate. In July, 2003, KIPT provided Jessies counsel with a letter from KIPT and a Material Safety Data Sheet for resin-coated sand made by Technisand. The letter stated that Patty might have been exposed to the resin-coated sand during her work at KIPT. The data sheet said that the use of the resin-coated sand could create formaldehyde fumes, and that formaldehyde was a carcinogen. Jessie filed this lawsuit against KIPT and another company in October, 2003, and added other companies in April, 2004. Technisand had not been sued at this point. On November 29, 2004, Pattys doctor, Dr. James K. Hwang, wrote to Jessie and disclosed that formaldehyde exposure "may have placed [Patty] at a greater risk for leukemia." (App. 66.) Jessies counsel received this letter on January 12, 2005. On February 16, 2005, the trial court granted Jessie leave to add Technisand as a defendant. Technisand raised a statute of limitations defense to Jessies amended complaint in its answer and later filed for summary judgment. Technisand argued that the WDA required Jessies claim to be brought within two years of Pattys death. The trial court denied the motion for summary judgment and certified its order for interlocutory appeal. The Court of Appeals affirmed, holding that the Indiana Products Liability Act ("PLA"), Ind. Code

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