This post is written by our Reed Smith colleague, Adam Masin, who is solely responsible for its content. He gets all the credit and all the blame.
This blog has previously written about Tennessee’s unusual statute of repose, here, here, and here, which bars claims “within one (1) year after the expiration date of the anticipated life of the product.” Tenn. Code Ann. Sec. 29-28-103. “Anticipated life” is a curious term. For example, the season finale of Homeland had many of its main characters wondering what their own “anticipated life” might be like given their circumstances. But we are not here to discuss the rather unrealistic-yet-compelling Homeland universe in which a bipolar CIA agent who never follows orders and is carrying the baby of the brainwashed former almost-terrorist who may not have bombed the CIA but still pretty much murdered the Vice-President can somehow find herself sent to Iran on purpose to oversee an impossible mission that involves trying to save her magically detoxed boyfriend (no spoilers here!). That’s a different blog post we’d like to write. We are here now to talk about “anticipated life” as it refers to products in Tennessee, the state that shares a border with the state where Homeland is filmed.
In Tennessee, “anticipated life of the product” is the “expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption.” Id. at Sec. 29-28-102. In Wahl v. General Electric Company, 2013 U.S. Dist. LEXIS 162320 at *19 (M.D. Tenn. Nov. 14, 2013), that meant that the plaintiff’s claims were barred by the statue of repose well before the plaintiff knew she had developed the condition she based her lawsuit on. The same was true in Montgomery v. Wyeth, and Spence v. Miles Lab. Other states have carved out latency or similar exceptions to their statues of repose that might apply to prescription medical products for various reasons, but Tennessee has not chosen that path.
Perhaps the only thing more unusual than Tennessee’s “anticipated life” statute of repose, however, is how courts have reacted to it. In Montgomery, the trial court began its opinion by questioning the propriety of the law:
Rarely does this Court suggest that a legislative body reconsider one of its enactments. The Court believes its role is simply to apply the law applicable to the case before it and not concern itself with the merits of the case. However, because of the result in this case, this is one of those rare cases where the Court believes it is appropriate to urge the Tennessee legislature to look closely at the law governing this case.
The court in Wahl ended its own opinion doing the same thing:
the court views the result in this case as manifestly unjust. Through no fault of her own, Wahl is left with an essentially incurable degenerative condition for which she has no recourse, because Tennessee extinguished her claims against GE before she could have discovered them. The time period here between the procedures at issue and Wahl’s NSF diagnosis was only about four years, which is not a time period that shocks the conscience. This court, as did Judge Collier in Montgomery, 540 F. Supp. 2d at 936 and 945, urges the Tennessee General Assembly to revisit the TPLA and its effect on Tennessee citizens injured by pharmaceutical products.
First things first. Both courts correctly applied the statute of repose and granted summary judgment against the plaintiff despite their perceptions about the harshness of the result. They should be credited for doing so. Trial courts should not be in the business of deciding cases based on emotion or personal opinions about the law they are being asked to apply. Jones v. Methodist Healthcare, 83 S.W.3d 739, 744 (Tenn. Ct. App. 2001) (“Only the hardest of hearts could not feel deeply for the Plaintiffs . . . However, we are not permitted to allow sympathy to enter into our decisions on matters of law.”) But there is something misguided about their criticism of the law. The basic concerns expressed by these courts appear to be that plaintiffs have no viable claims “[t]hrough no fault of their own” and before they even knew they were injured. That is certainly true, but much of product liability law turns on considerations that are outside the knowledge or control of the plaintiff. For example, some plaintiffs using prescription medical products will not be able to bring claims at all because they preempted by federal law. In addition, many states limit claims in their product liability statutes far more broadly than Tennessee does through its rarely-applied “expiration date” provision. Or take North Carolina, for example, the homeland for Homeland. North Carolina has no discovery rule for its 2 year statute of limitations – a far more broadly restrictive law than Tennessee’s “anticipated life” provision. (So pay attention Claire Danes!)
Even in states that have no statute limiting the subject matter of claims involving medical products, other considerations beyond the knowledge or control of the plaintiffs can effectively prevent them from having viable claims. The viability of design and manufacturing defect claims have nothing to do with facts within the patient’s control or knowledge. The learned intermediary doctrine, which as discussed here is almost universally applied, turns on the knowledge of the patient’s physician and the interaction between the manufacturer and the physician (if any). These factors come into play often well before the patient ever stepped foot in the doctor’s office, much less before any alleged injury resulted. The distinction between a plaintiff who does not have a viable claim because it was barred before she knew about her injury and a plaintiff who does not have a viable claim because her doctor’s knowledge at the time of the prescription eliminated an element of her cause of action before she ever used the product is merely a question of procedural timing. The end result is the same either way.
The court in Wahl was concerned that “Wahl is left with an essentially incurable degenerative condition for which she has no recourse.” This blog is not involved in that case and does not know anything about it other than what is in the court’s opinion. We do not pretend to have Saul Berenson’s resources here. But the Court’s implication that any plaintiff subject to a Tennessee statute of repose defense would have “recourse” absent the statute presumes that the plaintiff could prove each and every element of some cause of action that they would otherwise be permitted to pursue. We know that is frequently not true or defense lawyers wouldn’t be writing and winning summary judgment motions as often as Dana Brody looks sullen.
The Tennessee statute of repose has been around in its current form since 1978, so its provisions should hardly be a surprise to anyone. At the time, the General Assembly wanted to “to provide a reasonable time within which action may be commenced against manufacturers and/or sellers while limiting the time to a specific period of time for which product liability insurance premiums can be reasonably and accurately calculated.” Penley, 31 S.W.3d at 187 (quoting 1978 Tenn. Pub. Acts ch. 703 preamble). Tying that “specific period of time” to a known fact like a legally required expiration date placed on the product appears to make sense because it provides the manufacturer and its insurers with predictability. On the other hand, allowing claims to proceed based on an unknown future plaintiff’s knowledge – something like a discovery rule exception – does not appear to make sense if the intent is to provide predictability to manufacturers and insurers.
There may very well be a legitimate policy debate to be had about the Tennessee Legislature’s goals or its method of achieving them. The same can be said of Saul’s goals and methods. Like the courts, this blog will leave the policy considerations to those responsible for making policy. But there is nothing “manifestly unjust” about a plaintiff losing a lawsuit because of circumstances outside of her control or knowledge. As many of the Homeland regulars found out this week, being on the wrong side of a policy debate that you don’t control isn’t necessarily unjust at all. It is normal. “Manifestly unjust” is whatever it is that Dar Adal is probably up to in Season 4.