What follows is a rather involved guest post by Reed Smith‘s Kevin Hara. Actually, Kevin has contributed enough to the Blog over the last couple of years that he’s more of a crypto-blogger than a guest. Instead of the more common case-specific post, Kevin has put together his own 50-state survey on state statutes of repose. A lot of states have a variety of different statutes of repose. Some of these statutes (such as those based on useful life) can be useful in prescription medical product liability litigation, others (like those involving fixtures to real property) – not so much. Anyway, in this guest post Kevin endeavors to sort things out on a nationwide basis. As always our guest bloggers deserve 100% of the credit, and any blame, for their work.
Although this relatively recent Law360 article discussed statutes of repose, this powerful affirmative defense remains underutilized, so this post revisits it and digs a little deeper. This defense, where applicable, provides a potentially swift conclusion to an action with accompanying cost savings for the client. Further, defense counsel may move to dismiss at the pleading stage, where the applicability of the defense is apparent from the complaint. Many courts view statutes of repose as substantive, rather than procedural, unlike statutes of limitation – so the plaintiff cannot escape by becoming a litigation tourist.
The state of Tennessee’s statute of repose serves as a perfect example of a bright line application in a prescription product liability action, regardless of a plaintiff’s knowledge wherein “a delay, even without knowledge of the hazard involved in the delay, may preclude the bringing of an otherwise meritorious claim.” Montgomery v. Wyeth, 580 F.3d 455, 463, 466 (6th Cir. 2009) (applying Tennessee law). Tennessee courts have explained this rule succinctly:
A statute of limitations governs the time within which suit may be brought once a cause of action accrued. A statute of repose limits the time within which an action may be brought, but it is entirely unrelated to the accrual of a cause of action and can, in fact, bar a cause of action before it has accrued.
Jones v. Methodist Healthcare, 83 S.W. 3d 739, 744 (Tenn. App. 2001) (emphasis added).
The Texas Supreme Court provided a thoughtful analysis of that state’s clear-cut statute of repose:
Indeed, the key purpose of a repose statute is to eliminate uncertainties under the related statute of limitations and to create a final deadline for filing suit that is not subject to any exceptions, except perhaps those clear exceptions in the statute itself. In recognizing the absolute nature of a statute of repose, we have explained that while statutes of limitations operate procedurally to bar the enforcement of a right, a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time. The whole point of layering a statute of repose over the statute of limitations is to fix an outer limit beyond which no action can be maintained. One practical upside of curbing open-ended exposure is to prevent defendants from answering claims where evidence may prove elusive due to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer exist.
Methodist Healthcare Sys. of San Antonio v. Rankin, 307 S.W.3d 283, 286-87 (Tex. 2010 ) (internal citations and marks omitted) (emphasis added)
The Tennessee and Texas statutes of repose are elegant in their simplicity: you are either in, or you’re out. Period. No ifs, ands, or buts. Iowa, Connecticut, and North Carolina are a few of the states with similarly straightforward statutes of repose. However, perhaps because they are so unyielding – and unlike statutes of limitation, the vast majority of which are subject to the discovery rule – statutes of repose are often more limited in scope, and therefore not uniformly applicable to manufacturers of prescription medical products.
That said, statutes of repose add a significant item to any defense practitioner’s toolbox because they can take a case, and simply “nip it in the bud,” a common expression that is illustrative here. Indeed, it is a phrase that sometimes gets mixed up, such as with the malapropism “nip it in the butt,” which got us to thinking about something else that often leads to confusion: music. All too often, people misapprehend the words to a song, and there are a multitude of websites with compilations of some of the more notable – and incidentally, most humorous – misheard song lyrics, including Mentalfloss , Huffington Post, and New Musical Express, but here are some of the best. Perhaps the most famous example is the Jimi Hendrix classic “Purple Haze,” with famous phrase “Excuse me while I kiss the sky,” interpreted erroneously as: “Excuse me while I kiss this guy.”
Who can forget the San Francisco Bay Area’s own all-time great rock band Creedence Clearwater Revival’s song “Bad Moon Rising,” with part of the chorus, “There’s a bad moon on the rise,” replaced with “There’s a bathroom on the right.” (In fact, this error became prominent that front man John Fogerty was known to purposefully sing that rendition and gesture to the proverbial restroom.) Another prime example is the upbeat Johnny Nash song “I Can See Clearly Now,” with the line from the refrain “I can see clearly now, the rain is gone,” somehow thought to be: “I can see clearly now, Lorraine is gone.” It would be remiss not to mention The Monkees, and their hit “I’m A Believer,” with the eternally ecstatic line, “Then I saw her face, now I’m a believer!” instead substituted with the diametrically opposed – and frankly cruel, but evocative – “Then I saw her face, now I’m gonna leave her!”
Bexis pointed out that one could interpret the chorus of British band ELO’s chart topper “Evil Woman,” “Evil woman,” as “You need a woman.” He also misunderstood for years (until the advent of lyrics services on the Internet) the line in Steppenwolf’s “From Here To There Eventually” as “cause benign, rather than “caused by man.”
These faux pas are fitting metaphors for failing to comprehend the importance of statutes of repose. While it is easy enough to have a chuckle when a friend butchers a line in a favorite song, failing to seize an opportunity to secure a dismissal with prejudice is no laughing matter. Defense counsel should thoroughly consider and explore all possible options for resolving a case quickly in the name of expediency and client satisfaction.
To assist with those aims, here is a rundown of the applicable statutes of repose for all 50 jurisdictions, including discussions of which states apply the discovery rule, which utilize presumptions rather than complete defenses, and other subtle variations, beginning with those states whose statutes are most likely to apply to prescription product claims.
States With Statutes That Are Applicable To Prescription Product Liability Claims
Alabama – Alabama applies a unique, common law, 20 year rule of repose which “arose within the context of property disputes,” but according to the Alabama Supreme Court “the rationale underlying the rule is not so limited and, accordingly, the rule has been applied in other contexts, including those alleging tort claims.” Ex parte Liberty National Life Insurance Co., 825 So. 2d 758, 763-64 (Ala. 2002); see also Owens-Illinois, Inc. v. Wells, 50 So.3d 413, 420 (Ala. 2010) (ruling that “Alabama’s 20-year common-law rule of repose does not begin to run on a claim until all the essential elements of that claim, including an injury, coexist so that the plaintiff could validly file an action”).
Colorado – Col. Rev. Stat. § 13-21-403(3). Applies a presumption of non-defectiveness more than “[t]en years after a product is first sold.” See Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992).
Connecticut – Conn. Gen. Stat. § 52-577a. An action is foreclosed “more than 10 years after the manufacturer relinquished “possession or control of the product,” absent fraud or express warranty.
Florida – Fla. Stat. § 95.031(b). A products liability action is barred “more than 12 years after delivery of the product,” with exceptions for latent disease or injury, and fraudulent concealment.
Georgia – O.C.G.A. § 51-1-11(b)(2). Precludes any action “after ten years from the date of the first sale for use or consumption” of a product that causes injury.
Idaho – Idaho Code § 6-1403(b). Rebuttable presumption that injury “caused more than ten (10) years after time of delivery” occurred after product’s safe life, rebuttable “by clear and convincing evidence.”
Illinois – 735 ILCS 5/13-213(b). Forbids any “product liability action” on any theory after 12 years from the first sale or 10 years after the purchase by an initial consumer, unless brought within two years of discovery of alleged injuries. Davis v. Toshiba Mach. Co., 710 N.E. 2d 399, 401 (Ill. 1999) (weakening statute of repose by allowing discovery rule in cases not involving latent injuries).
Indiana – Ind. Code § 34-20-3-1(b). Action must commence within “10 years after delivery of the product to initial user,” but may be brought within two years after accrual. See, e.g., Land v. Yamaha Motor Corp., 272 F.3d 514, 515-516 (7th Cir.2001) (ruling that where it was “undisputed” that injury and filing suit occurred more than 10 years after product purchase by initial user, statute of repose barred product liability action.) (emphasis added).
Iowa – Iowa Code § 614.1(b). Bars product liability action on any theory 15 years after purchase of a product absent express warranty or concealment. See Albrecht v. GMC, 648 N.W.2d 87, 95 (Iowa 2002) (the “allegations of the petition establish[ed] that the present suit falls with the scope of section 614.1(2A)(a) and was brought more than fifteen years after the product in question was first purchased,” precluding plaintiff’s action); Cf. Merner v. Deere & Co., 176 F. Supp.2d 882, (E.D. Wis. December 18, 2001) (under Wisconsin’s borrowing statute that 15 year Iowa statute of repose barred plaintiff’s claims).
Kansas – Kan. Stat. Ann. § 60-3303(a)(b)(1). A presumption arises that a product’s “useful safe life,” expires 10 years after delivery, rebuttable by “clear and convincing” evidence; see also Kan. Stat. Ann. § 60-513(b), barring claims more than 10 years old. The useful safe life statute of repose applies to prescription drugs. Baughn v. Eli Lilly & Co., 356 F. Supp. 2d 1166, 1172 (D. Kan. 2005). In Ehrenfelt v. Janssen Pharms., ___ F. Appx. ___, 2018 WL 2945911 (6th Cir. June 11, 2018), a prescription drug product liability case, the Court of Appeals for the Sixth Circuit held “that the exceptions in Kan. Stat. Ann. § 60-3303(b)(2)(D) [for latent injuries] appl[ied] even when the harm was caused less than ten years after delivery.” Id. at *2. Therefore, the plaintiff’s claims for alleged injuries from use of a drug was not barred under the general 10 year statute of repose, § 60-513(b).
Kentucky – K.R.S § 411.310(1). Presumption that a product was not defective for injury “more than five (5) years after the date of sale . . . or more than eight” years after manufacture, rebuttable by a preponderance of evidence.
Michigan – Mich. Comp. Laws § 600.5805(13). Technically not a statute of repose, but after a product has “been in use for not less than 10 years,” the plaintiff is not entitled to any presumption improving his case. But see Hall v. GMC, 582 N.W.2d 866, 867 (Mich. App. 1998) (“claim could be pursued under Michigan law, which has no statute of repose,” and where statute of limitations did not prevent claim).
Minnesota – Minn. Stat. § 604.03. Provides an affirmative defense for injuries occurring after “the expiration of the ordinary useful life of the product,” which is a jury issue. Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn. 1988) (“We hold, therefore, that … [product’s useful life] is a factor to be weighed by the jury in determining the fault of the manufacturer and the fault of the user.”).
Nebraska – Neb. Rev. Stat. § 25-225. Bars claims filed more than 10 years after product manufactured in Nebraska, otherwise the statute of repose of the state of manufacture applies, not to exceed 10 years, or 4 years from date of injury if no statute exists, applicable to prescription products. King v. Pfizer, Inc., 2016 U.S. Dist. Lexis 111456, 17-18 (D. Neb. Aug. 19, 2016) (fraud based claims for injuries allegedly resulting from prescription drug are “grounded in product liability,” such that the substantive right of the statute of repose cannot be removed “by court action,” whereby passage of the 10-year period, following plaintiff’s first prescription “vested the Defendants with a substantive right under § 25-224(2),” barring the action).
North Carolina – N.C. Gen. Stat. § 1-46.1. Prohibits product liability claims “more than 12 years after . . . initial purchase for use or consumption.” See Willoughby v. Johnston Memorial Hosp. Authority, 2016 WL 4091370, at * 13-14, 791 S.E.2d 283 (table) (N.C. App. Aug. 2, 2016) (affirming summary judgment for manufacturer of surgical table, including indemnity claim, notwithstanding that alleged injuries occurred in 2009, and actual loss in 2015); In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 4385846, at *3 (M.D. Ga. Aug. 15, 2016) (applying North Carolina law) (plaintiff suffered alleged injuries when she experienced mesh erosion, which foreclosed claims per statute of repose).
Ohio – Ohio Rev. Code § 2305.10(C)(1). Precludes claims more than 10 years after product delivery to first consumer, but applies discovery rule to prescription drugs, which reduces the provision’s utility.
Oregon – Or. Rev. Stat. § 30.905(2). An action “must be commenced before the later of 10 years after” product’s purchase, or the expiration of the statute of repose in state of manufacture. Wrongful death actions must be brought within 3 years after death or 10 years after product purchased, whichever occurs sooner. O.R.S. § 30.905(3)-(4). Dortch v. A. H. Robins Co., 650 P.2d 1046, 1052-53 (Or. App. 1982), overruled on other grounds, (IUD manufacturer properly dismissed; statute of repose limited “manufacturer’s liability to ten years and [gave] each plaintiff a full two years to commence an action after the cause of action accrue[d],” and finding that the claim was barred.); Philpott v. A.H. Robins Co., 710 F.2d 1422, 1425 (9th Cir. 1983) (plaintiff’s claims “barred by ORS 30.905,” where “she did not learn of a causal connection between her pelvic disorders and the Dalkon Shield until . . . nine years and eight months after she purchased and began using” the product).
Tennessee – Tenn. Code Ann. § 29-28-103(a). An action must be brought “within ten (10) years” from purchase, or “one (1) year after the expiration” of product life. See, e.g., Jenkins v. Novartis Pharmaceutical Corp., 2013 WL 1760762, at *3 (E.D. Tenn. Apr. 24, 2013) (implied warranty claim against prescription drug manufacturer was prohibited by statute of repose where motion to amend was filed more than 10 years post injury “by both the six-years-from-injury provision of § 29-28-103(a) and the ten-years-from-purchase provision of § 29-28-103(a)).” Tennessee case law bars any discovery rule or fraudulent concealment exception to the statute. Greene v. Brown & Williamson Tobacco Corp., 72 F. Supp.2d 882, 886 (W.D. Tenn. 1999) ( “[a]n equitable ‘discovery rule’ is not available to toll the statute of repose” and holding that “the Tennessee Supreme Court would decline to create an equitable exception for fraudulent concealment”).
Texas – Tex. Code Ann. § 16.102(b) cuts off actions 15 years “after the date of the sale of the product” with exceptions for latent disease and express warranty, but is not subject to tolling. See Methodist Healthcare System v. Rankin, 307 S.W.3d 283, 290 (Tex. 2010) (“the essential function of all statutes of repose is to abrogate the discovery rule and similar exceptions to the statute of limitations” and a “statute of repose, by design, creates a right to repose where the applicable statute of limitations would be tolled or deferred”); Salgado v. Great Dane Trailers, 2012 WL 401484, at *2 (S.D. Tex. Feb. 6, 2012) (“[a] statute of repose … does not run from the time a cause of action arises, but from some other date or event selected by the Legislature,” and is “not subject to judicially crafted rules of tolling or deferral”) (internal citations and quotations omitted).
Washington – Wash. Rev. Code Ann. § 7.72.060(1)(b)(i-iii). Rebuttable presumption that an injury “more than twelve years after . . . delivery,” occurred after expiration of a product’s useful life, with exceptions for express warranty, concealment, and latent injuries.
Wisconsin – Wis. Stat. § 895.047(5-6). Precludes action for products manufactured “15 years . . . or more” before a claim with exceptions for negligence, latent disease, and express warranty, and asbestos actions).
States With Statutes That Are Not Applicable To Prescription Product Claims
By contrast, the following states have statutes of repose that are inapplicable to prescription product liability actions, generally because they have statutes that pertain only to real property improvements or the statutes contain exclusions for defective products.
Alaska – Alaska Stat. § 09.10.055(2). Actions must be brought “within 10 years,” of the “last act alleged to have caused the personal injury,” property damage, or death, but expressly excludes defective products.
Arkansas – Ark. C. Ann. § 16-56-112. Applicable to property actions only; Brown v. Overhead Door Corp., 843 F. Supp. 482, 490 (W.D. Ark. 1994) (ruling that statute of repose was limited to real property improvements, holding that “Arkansas courts when called upon to do so will hold that the manufacturers of mass produced fungible goods do not fall within the protection of the statute, particularly when the defendant manufacturer is not involved in the installation of the product and had nothing to do with the design of the improvement within which it is installed”).
California – Cal. Civ. Proc. Code § 337.15 (10 years for latent deficiencies). See McCann v. Foster Wheeler LLC, 225 P.3d 516, 529 (Cal. 2010) (finding that California’s statute of repose was applicable to latent deficiencies in real property improvement, “not to personal injury actions.”).
Delaware – 10 Del. C. § 8127. Applicable only to claims pertaining to real property improvements, within six years of substantial completion.
District of Columbia – D.C. Code § 12-310. Real property claims only, within 10 years of substantial completion of project.
Hawaii – Haw. Rev. Stat. § 657-8. Available only for claims within 10 years of substantial completion of improvement to real property, and two years after accrual.
Maine – 14 M.R.S.A. § 752-A. Statute applicable only to real property, within 10 years of the project or services rendered, but no more than 4 years after discovery.
Maryland – Md. Code Ann. § 5-108. Does not apply to product liability, but for property improvements within 20 years and 10 years against architect or engineer.
Massachusetts – Mass. Ann. Laws Ch. 260 § 2B. Allows claims within 6 years of substantial completion of improvement, and owner taking possession.
Mississippi – M.C.A. § 15-1-41. Claims must be brought within 6 years of acceptance or actual occupancy for real property improvement.
Missouri – Mo. Rev. Stat. § 516.097. Applicable to real property improvement claims within 10 years of substantial completion.
Montana – Mont. Stat. § 27-2-208. Statute allows claims within 10 years of improvement, including to damage caused by a defective product related to the improvement.
Nevada – N.R.S. § AB 125, § 2. Applies to real property improvements, six-year statute of repose.
New Jersey – N.J.S.A. § 2A: 14-1.1. Real property improvements only, within 10 years of substantial completion.
New Mexico – N.M.S.A. § 37-1-27. Repose only for improvements to real property, 10 years of substantial completion.
New York – While New York has no true statute of repose, courts require notice of an action to any party responsible for professional performance, such as architects and engineers, after 10 years have elapsed. Six year statute of limitations for construction defects, N.Y. C.P.L.R. § 214-d.
Oklahoma – 12 Okla. Stat. Ann. Tit. 12 § 109. Claims for real property improvements must be brought within 10 years of substantial improvement.
Pennsylvania – Although the statute of repose, 42 Pa. C.S.A. § 5536(a), is generally applicable only to real property improvements, it may apply to product manufacturers in certain cases, such as to manufacturers of asbestos. See, e.g., Graver v. Foster Wheeler Corp., 96 A.3d 383, 386-87 (Pa. Super. 2014) (granting j.n.o.v., applying the 12 year statute of repose relating to real property improvements to 13 story boiler in asbestos action because statutes of repose are substantive, and may bar actions before they accrue).
South Carolina – S.C. Code Ann. § 15-3-640. Must be brought within 8 years of substantial completion of improvement to real property.
South Dakota – S.D.C.L. § 15-2A-3. Applicable to real property improvements only, within 10 years of substantial completion.
Utah – U.C.A. § 78B-2-225. Actions for real property improvements may not be brought later than nine years after completion.
Vermont – Vt. Stat. Ann. Tit. 27A, § 4-116(a). Applicable only to Common Interest Ownership claims within six years after the cause of action arose.
Virginia – Va. St. § 8.01-250. Claims must be brought within five years for injuries resulting from improvements to real property, but does not apply to manufacturers of equipment.
West Virginia – W. Va. Code § 55-2-6a. Applies to claims related to real property, construction or design within 10 years of occupancy or acceptance, but excludes product manufacturers.
Wyoming – Wyo. Stat. § 1-3-111. Applicable only to real property improvements, if a claim is brought within 10 years of substantial improvement.
States In Which Courts Ruled That Statutes Of Repose Were Unconstitutional
New Hampshire – Heath v. Sears, Roebuck & Co., 464 A.2d 288, 296 (N.H. 1983) (statute of repose unconstitutional where plaintiffs were “deprived arbitrarily of a right” to sue).
North Dakota – Dickie v. Farmers Union Oil Co., 611 N.W. 2d 168, 173 (N.D. 2000) (product liability statute of repose violated equal protection clause).
Rhode Island – Kennedy v. Cumberland Eng’g Co., 471 A.2d 195, 201 (R.I. 1984) (holding that state “Constitution forbids absolute bars to recovery” prior to accrual).
Arizona –Hazine v. Montgomery Elevator Co., 861 P. 2d 625, 630 (Ariz. 1993) (holding statute of repose unconstitutional, ruling “A.R.S. § 12-551 abrogated that constitutional right [to bring action] by barring the action even before the injury occurred,” and that “the attempted statutory abrogation of their claim fails.”).
Statutes of repose can be a defense counsel’s best friend by providing an inexpensive and decisive avenue for disposal of an action, even before the claims have accrued in certain jurisdictions. However, each state is different, and practitioners need to research potentially relevant provisions thoroughly. After all, a missed opportunity to end the case before it begins is no song and dance.