IN THE
Court of Appeals of Indiana Richard Shaling, FILED Appellant-Plaintiff Mar 11 2025, 8:47 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
Biomet, Inc., et al., Appellees-Defendants
March 11, 2025 Court of Appeals Case No. 24A-CT-516 Appeal from the St. Joseph Circuit Court The Honorable John E. Broden, Judge Trial Court Cause No. 71C01-1906-CT-216
Opinion by Chief Judge Altice Judges Vaidik and Scheele concur.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 1 of 16 Case Summary [1] Richard Shaling appeals the grant of summary judgment in favor of Biomet,
Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, and Biomet
Manufacturing LLC (collectively, Biomet), arguing that the trial court should
have applied Alabama law to his products liability claims against Biomet, and
that the trial court erred in determining that his action is time-barred under the
Indiana Products Liability Act’s (IPLA) statute of repose, Ind. Code § 34-20-3-
1. Specifically, Shaling contends that Alabama law should govern his action
because he provided Biomet with sufficient notice of his intent to assert the
applicability of its laws. Shaling further maintains that Indiana’s statute of
repose did not bar his claims because that statute does not apply in products
liability actions where, as here, an injury was caused by a disease that might
have been contracted from prolonged exposure to an inherently dangerous
foreign substance. Shaling further claims that his action was timely because he
sued Biomet within two years after his cause of action had accrued.
[2] We affirm.
Facts and Procedural History [3] On February 20, 2001, Shaling—while living in Alabama—underwent total hip
replacement surgery 1 in Birmingham, Alabama, wherein Dr. Timothy Cool
1 The designated evidence reveals a discrepancy regarding the date of the surgery. Shaling’s complaint alleges that the surgery was performed on February 20, 2001, whereas the designated evidence asserts that it
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 2 of 16 implanted a metal-on-metal system (M2 System) in Shaling’s left hip. Biomet,
whose principal place of business is in Warsaw, Indiana, manufactured,
engineered, and designed the M2 System. Shaling’s surgery replaced metal
hardware that had been implanted in his hip following a serious motorcycle
accident in 1984.
[4] In August 2014, Shaling was diagnosed with leukemia, and in early 2015,
testing revealed elevated metal ion levels in his blood. Shaling began
conducting his own online research to determine whether metal-on-metal hips
caused the ions and could have caused his leukemia.
[5] On January 29, 2015, Shaling visited his primary care physician, Dr. Jeremy
Smith, shared several articles with him about metal ion levels, and discussed
whether the M2 System might have produced his illness. Following their
conversation, Dr. Smith ordered various tests for Shaling, and it was discovered
that Shaling’s ion levels remained elevated. At the time, Shaling was not
experiencing pain or suffering mobility problems. Dr. Smith determined that
the elevated levels had not reached a dangerous point, and he did not
recommend any further action.
[6] In March 2015, Shaling consulted with Dr. Cool about the elevated ions and
whether he might require surgery to replace the M2 System. Dr. Cool did not
was performed on December 20, 2001. As the discrepancy does not affect the issues on appeal, we reference February 20, 2001 as the date of the surgery.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 3 of 16 see an immediate need for additional surgery, and he could not predict whether
the elevated levels might cause future problems. Dr. Cool, however, ordered
Shaling to undergo MRI and CT scans. Shaling’s medical records indicated
that the CT scan findings, dated June 16, 2015, were “worrisome for particle
disease.” Appellant’s Appendix Vol. 3 at 104.
[7] After a follow-up appointment with Dr. Smith on July 28, 2015, medical
records indicated that Shaling had consulted with Dr. Cool about replacing or
resurfacing his left hip. Shaling, however, asserted that there was “no talk”
about additional surgeries, and that Dr. Cool assured him it was not time to
replace the hip, regardless of the elevated levels. Id. at 200.
[8] From early February 2016 through February 2017, additional blood tests
showed that Shaling’s ion levels had fluctuated from a minor elevation to a
“cobalt toxicity” level. Id. at 208. Dr. Cool was concerned that the M2 System
had likely caused the metal ion release. At a follow up appointment with Dr.
Cool on July 14, 2017, Shaling was experiencing hip pain. At some point
thereafter, Dr. Cool told Shaling—without further explanation—that they
“needed to get that hip out.” Id. at 215, 217. Dr. Cool ruled out infection and
loosening of the prosthetic as causes of Shaling’s elevated ion levels.
[9] Shaling underwent revision surgery on August 15, 2017, in Alabama, where it
was determined that the M2 System had failed. Dr. Cool used a different cobalt
chromium head in the surgery and left some of the metal components in
Shaling’s body. Following the surgery, Shaling’s ion levels drastically
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 4 of 16 decreased. Dr. Cool concluded that the M2 System had “poisoned Shaling
from the inside,” because the implant was “shedding cobalt.” Appellant’s
Appendix Vol. 3 at 347, 356.
[10] Following the revision surgery, Shaling’s levels eventually returned to normal.
Shaling, however, began to experience intense pain, paralysis and numbness in
his left leg, and he needed a crutch to walk. Shaling underwent an additional
surgery because his sciatic nerve was encased in scar tissue from the prior hip
surgeries. Shaling ultimately suffered a serious infection and is now
permanently disabled.
[11] On June 10, 2019, Shaling filed a products liability complaint against Biomet,
seeking compensatory and punitive damages. Shaling alleged that Biomet had
“fast tracked” the M2 System—before the Federal Drug Administration had
approved it—by claiming that the device was substantially equivalent to other
products that had already been cleared for sale. Appellant’s Appendix Vol. 2 at
32-33. Shaling further asserted that Biomet misled him and the public regarding
the safety of its products, that the M2 System was defectively designed and
unreasonably dangerous, and that Biomet failed to provide reasonably complete
and accurate information to Shaling and the orthopedic community about the
M2 System.
[12] On May 7, 2023, the trial court entered an order setting the matter for a two-
week jury trial to begin on June 3, 2024. Thereafter, on October 31, 2023,
Biomet filed a motion for summary judgment, arguing that Shaling’s claims
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 5 of 16 were time-barred under the IPLA’s two-year statute of limitations and the
statute of repose. Biomet maintained that because Shaling was implanted with
the M2 System more than 18 years before filing his complaint, the statute of
repose barred his action. Biomet also asserted that Shaling’s case was
independently barred by the two-year statute of limitations because Shaling
knew—no later than June 2015—of his elevated metal ion levels in his blood,
that the M2 System was the cause of the elevated levels, and that he would
require revision surgery to remove the M2 System. Thus, Biomet argued that
Shaling was required to file his complaint prior to June 2017.
[13] In opposing Biomet’s motion for summary judgment, Shaling argued that there
were genuine issues of material fact as to when he suffered his injury. Shaling
maintained that he did not sustain injury until July 2017, and the injury was
documented on August 11, 2017. Shaling also argued—for the first time—that
Alabama law should govern the action because the two surgeries were
performed there. Shaling maintained that while Alabama’s two-year statute of
limitations is similar to Indiana’s, there is no statute of repose in Alabama that
would bar his claims.
[14] Following a hearing on January 9, 2024, the trial court declined to apply
Alabama law to Shaling’s action, concluding that Shaling had not provided
sufficient notice under Ind. Code § 34-38-4-4, the Uniform Judicial Notice of
Foreign Law Act (UJNFLA), of his request for application of Alabama law.
The trial court observed that “to raise [the] substantive choice of law in the
summary judgment response . . . mere months before the scheduled two-week
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 6 of 16 trial. . . is not reasonable and is prejudicial to [Biomet].” Appellant’s App. Vol. 2
at 25-26. The trial court then determined that Shaling’s claims were not time-
barred under the two-year statute of limitations because questions of fact
remained “as to when exactly [Shaling] should have discovered that there was
an actionable harm to him that would trigger the commencement of the statute
of limitations . . . .” Id. at 25. It concluded, however, that Indiana’s statute of
repose barred Shaling’s action because he “designated no evidence to dispute
Biomet’s designated evidence that the [M2 System] was delivered to the market
when [it] was implanted [in his hip] on February 20, 2001.” Id. at 26.
[15] Shaling now appeals.
Discussion and Decision
Standard of Review [16] As Shaling is appealing the trial court’s grant of summary judgment in Biomet’s
favor, our standard of review is well settled:
When this Court reviews a grant or denial of a motion for summary judgment, we “stand in the shoes of the trial court.” Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” We will draw all reasonable inferences in favor of the non- moving party. We review summary judgment de novo.
Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1067-68 (Ind.
2022) (citations omitted).
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 7 of 16 I. Shaling’s Request to Apply Alabama Law [17] Shaling argues that the trial court abused its discretion in determining that he
failed to provide reasonable notice of his intent to rely on Alabama law.
Shaling asserts that because the parties had not yet prepared for trial, and the
trial was not scheduled to commence for several months, his notice to Biomet
was timely and Biomet was not prejudiced by the request.
[18] Under the UJNFLA,
[a]ny party may present to the trial court any admissible evidence of such [foreign] laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken of the evidence, reasonable notice shall be given to the adverse parties, either in the pleadings or otherwise.
I.C. § 34-38-4-4 (emphasis added).
[19] A trial court’s ruling on a party’s request to apply the law of another jurisdiction
pursuant to the UJNFLA is reviewed for an abuse of discretion. Storey v.
Leonas, 904 N.E.2d 229, 236 (Ind. Ct. App. 2009), trans. denied. Thus, we
presume that the trial court acted “in accord with what is fair and equitable,”
and we only reverse if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court, or if the trial court has
misinterpreted the law. DePuy Orthopaedics, Inc., v. Brown, 29 N.E.3d 729, 731-
32 (Ind. 2015). We will not reweigh the evidence; rather, we will determine
whether the evidence before the trial court can serve as a rational basis for its
decision. Id. at 732. In doing so, we consider the evidence in a light most
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 8 of 16 favorable to the judgment. Reel v. Reel, 231 N.E.3d 915, 926 (Ind. Ct. App.
2024).
[20] In construing the UJNFLA, our Supreme Court has observed that the “purpose
of the notice requirement is to allow the other party time to prepare by studying
the applicable law.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999).
In the absence of “reasonable notice” as required under the UJNFLA, the trial
court will presume that the law in the other jurisdiction is substantially the same
as that in Indiana. Id. at 146. Failure to satisfy the requirements of the
UJNFLA will result in the application of Indiana law. Holland v. Miami Sys.,
Inc., 624 N.E.2d 478, 482 (Ind. Ct. App. 1993), trans. denied.
[21] Instructive here is Sword, where our Supreme Court construed the meaning of
“reasonable notice” under the UJNFLA. The issue was whether the trial court
abused its discretion in holding that the plaintiffs waived a choice-of-law issue
by waiting until a summary judgment hearing to argue that Kentucky
substantive law governed a medical malpractice action. 714 N.E.2d at 146.
The plaintiffs argued that they provided reasonable notice under the UJNFLA
because a sister action was pending in a Kentucky court, the details of the
complaint made it “clear” that Kentucky law should apply, and they raised the
issue at the summary judgment hearing. Id. Our Supreme Court rejected those
arguments and held that the plaintiffs failed to give reasonable notice under the
UJNFLA.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 9 of 16 [22] In arriving at that result, the Court observed that “the fact that an [injury]
occurred in a state other than Indiana does not provide reasonable notice that a
party will seek to use the other state’s law.” Id. at 146. The Court rejected the
plaintiff’s contention that the complaint provided the required notice because
“the complaint . . . stated only that [the defendant was] a Kentucky hospital
and that the incident occurred in Kentucky, facts which, in and of themselves,
do not provide reasonable notice.” Id. at 147. The Court further observed that
raising the issue at the summary judgment hearing was not reasonable notice
because the plaintiffs asserted a potentially “strategy-altering issue without
allowing [the defense] any opportunity to prepare.” Id. Thus, the Court
concluded that the trial court did not abuse its discretion in determining that the
plaintiffs waived the choice-of-law issue, and that Indiana law governed the
action.
[23] Like Sword, Shaling “raised a potentially strategy-altering issue” at the
summary judgment stage of the proceedings. See id. at 147. Shaling filed his
complaint in 2019, and the two-week jury trial was to commence on June 3,
2024. Shaling did not request the application of Alabama law until he filed his
opposition to Biomet’s motion for summary judgment on December 6, 2023—
four years after the complaint was filed and less than six months before the jury
trial was to begin. Moreover, the parties conducted discovery, motions were
filed, and trial strategy was developed—all in accordance with Indiana law.
And when Biomet filed its motion for summary judgment in October 2023,
discovery had closed and Shaling had provided Biomet with its list of expert
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 10 of 16 witnesses. In light of these circumstances, we cannot say that the trial court
abused its discretion in concluding that Shaling failed to give reasonable notice
of his request for application of Alabama law.
II. Indiana’s Statute of Repose [24] Shaling argues that the trial court erred in determining that the IPLA’s statute
of repose barred his action. Shaling likens his injury from the M2 System to
asbestos-related diseases and contends that his action can proceed because the
statute of repose does not apply to injuries that are the result of a “protracted
exposure to an inherently dangerous foreign substance.” Appellant’s Brief at
52.
[25] Personal injury claims stemming from alleged defects in a defendant’s product
fall under the scope of the IPLA. Stegemoller v. ACandS, Inc., 767 N.E.2d 974,
975-76 (Ind. 2002). As relevant here, the IPLA’s statute of limitations and
repose are set out in I.C. § 34-20-3-1 as follows:
(a) This section applies . . . in any product liability action in which the theory of liability is negligence or strict liability in tort.
(b) [A] 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 consumer.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 11 of 16 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.
[26] The statute of repose is an affirmative defense, Jurich v. John Crane, Inc., 824
N.E.2d 777, 780 (Ind. Ct. App. 2005), trans. denied, and its purpose with regard
to products liability claims is to place “an outer limit on the right to bring a civil
action,” measured “not from the date on which the claim accrues but instead
from the date of the last culpable act or omission of the defendant.” CTS Corp.
v. Waldburger, 573 U.S. 1, 8 (2014). It is the legislature’s clear intention to limit
the time within which product liability actions can be brought. Estabrook v.
Mazak Corp., 140 N.E.3d 830, 836 (Ind. 2020). Statutes of repose balance the
victim’s interests in recovering damages with a business’s interest in being free
from indefinite liability exposure. See Scalf v. Berkel, Inc., 448 N.E.2d 1201,
1204-05 (Ind. Ct. App. 1983).
[27] As our Supreme Court observed in Estabrook,
[t]he statute [of repose] requires a plaintiff to bring suit ‘within (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.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 12 of 16 140 N.E.3d at 831. The only other exception is a judicially-created one dealing
with allegations of latent harm from exposure to asbestos. See Myers v. Crouse-
Hinds Div. Of Cooper Indus., Inc., 53 N.E.3d 1160 (Ind. 2016).
[28] In this case, the designated evidence established that the M2 System was
“delivered” no later than February 20, 2001, i.e., the date the device was
implanted in Shaling’s hip. Shaling did not file his action until June 10, 2019—
approximately 18 years later. While Shaling’s action is barred under the statute
of repose, he claims that summary judgment for Biomet was erroneous because
the M2 System’s metal ion release should be treated as an “inherently
dangerous foreign substance” that is exempt from the statute of repose.
Appellant’s Brief at 55. Shaling asserts that his action should proceed because
the M2 System—after it was placed in his hip—“continuously produced metal
ions that slowly entered his bloodstream.” Id. at 52. As a result, he claims such
circumstances allow him to file suit within two years of discovering his alleged
injury.
[29] Shaling does not direct us to any case—nor have we found one—that stands for
the notion that there is a general latent disease exception to the statute of repose
in products liability claims. Indeed, the United States District Court recently
interpreted the IPLA’s statute of repose in Johnson v. Centrome, Inc., 688
F.Supp.3d 813, 826 (N.D. Ind. 2023). In that case, the plaintiff was exposed to
various toxic industrial chemicals beginning in 1992 while working at a
popcorn factory. The plaintiff last came into contact with the chemicals in
1995, began to experience “shortness of breath” in 1998, and was diagnosed
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 13 of 16 with chronic bronchitis and other respiratory diseases in 2009. Id. at 817, 819.
The plaintiff left his employment sometime in 2009, and in April 2020—nearly
twenty-five years after the last exposure to the chemicals—he brought a
products liability action against the manufacturer and seller of the toxic
chemicals.
[30] The Johnson Court granted the defendants’ motion for summary judgment and
determined that the IPLA’s statute of repose barred the plaintiff’s action. In
arriving at that result, the Court observed that the argument for excepting cases
from the statute of repose that involve latent diseases that arise from inherently
dangerous products “springs from a line of asbestos-related cases, in which
Indiana courts have departed from the plain language of the IPLA statute of
repose.” Id. The Court further noted—and correctly so—that such cases
exempting plaintiffs from the statute of repose have only applied to “long-term,
difficult-to-discover diseases caused by asbestos exposure.” Id. at 828 (emphasis
added); see, e.g., Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 387 (Ind. 1989)
(limiting its holding “to the precise factual pattern presented,” i.e., cases
involving injuries caused by asbestos). And “the fact that other diseases may
share some similarities with asbestosis and mesothelioma, cannot overcome a
dearth of authority carving those conditions out of the IPLA statute of repose.”
Johnson, 688 F.Supp.3d at 826. Thus, doing so here would create an exemption
that simply is not there. See, e.g., Estabrook, 140 N.E.3d at 832 (rejecting the
plaintiff’s argument that the statute of repose contains an exception for a
product’s repair, refurbishment, or reconstruction because it “was not an
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 14 of 16 asbestos lawsuit”). In short, other than asbestos-related claims, no prior
decision from either this court or our Supreme Court has fashioned a general
latent disease exception to the statute of repose.
[31] Granted, our General Assembly could enact such an exemption to the statute of
repose, but it has not done so. And whether there should be a broad latent
disease exception is arguable as a matter of policy, but either way, it is for the
legislature to decide—not the courts. See id. at 834 (observing that our courts
“merely interpret the statute the legislature enacts”). In sum, there is no
“exposure to an inherently dangerous foreign substance” exception embodied
in the statute of repose as Shaling would have it. Appellant’s Brief at 9. 2
[32] Because Shaling did not file his complaint until June 10, 2019—nearly eighteen
years after the M2 system was implanted in his hip—his action is time-barred.
Accordingly, we conclude that the trial court properly granted summary
judgment for Biomet. 3
[33] Judgment affirmed.
2 Shaling also suggests that the IPLA’s statute of repose is tolled because of Biomet’s alleged fraudulent concealment. We note, however, that he did not present this argument to the trial court. Thus, the issue is waived. See GKC Ind. Theatres, Inc. v. Elk Retail Invs., LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002) (holding that a party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court). Moreover, even had Shaling preserved the issue, our Supreme Court has rejected the argument that fraudulent concealment tolls a statute of repose. Blackford v. Welborn Clinic, 172 N.E.3d 1219, 1231 (Ind. 2021).
3 Because the statute of repose bars Shaling’s action against Biomet, we need not decide whether his claim is separately time-barred under IPLA’s two-year statute of limitations.
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 15 of 16 Vaidik, J. and Scheele, J., concur.
ATTORNEYS FOR APPELLANT Crystal G. Rowe Jacob W. Zigenfus New Albany, Indiana
ATTORNEYS FOR APPELLEES Brian J. Paul Indianapolis, Indiana
Eldin Hasic Blake T. Lehr Fort Wayne, Indiana
Court of Appeals of Indiana | Opinion 24A-CT-516 | March 11, 2025 Page 16 of 16