We just saw a commercial with the tag line, “Life is messy. Clean it up.” It’s true – life is messy, sometimes gloriously so. Rules get broken, scripts get torn up, best-laid plans are tossed aside by the winds of fortune. That’s why we like statutes of repose. They are bulwarks in a system in which statutes of limitations too often fall prey to “spun” facts and passive judges. Today’s tidy decision, Brown v. Exactech, Inc., 2019 WL 1369438 (E.D. Tenn. Mar. 26, 2019), underscores this distinction.
As the Brown court explained, the difference between a statute of limitations and a statute of repose is that “a statute of limitations applies when a cause of action has accrued, while a statute of repose applies to an[y] action which may accrue, should an injury occur in the future. Brown, 2019 WL 1369438 at *2. A statute of repose sets a cutoff date, typically running from the date of sale of a product, by which suit must be filed or be barred forever. The timing of a claimed injury and the construction of a discovery rule have no relevance in the statute of repose context. In other words, “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.” Id. (citations omitted). You can read our 50-state overview of statutes of repose here. Texas, the law of which applied to Brown, applies a fifteen-year statute of repose in product liability cases.
The plaintiff in Brown underwent hip replacement with the defendant’s prosthetic femoral stem. After nearly (but not quite) fifteen problem-free years, the femoral stem broke. By the time the plaintiff filed his complaint, fifteen months later, more than fifteen years had elapsed since the implant surgery. The defendant moved for summary judgment on the ground that the suit was time-barred under Texas’s statute of repose. In response, the plaintiff argued that the case fell within one of two exceptions Texas recognizes to the absolute bar erected by the statute of repose.
As the Brown court explained, “[f]irst, the statute of repose will not apply when the manufacturer or seller has expressly warranted, in writing, that the product has a useful safe life of longer than fifteen years.” As the plaintiff conceded that implanting doctor could not remember an express warranty from the defendant. But the doctor executed an affidavit in which he stated that he “would have advised the patient of an expected 15-20 year life span of the implant” and would have provided the advice “orally and/or in writing.” Id. at *3. The plaintiff argued that this amounted to an express warranty that the femoral head had a useful, safe life of longer than fifteen years.
The court disagreed. First, as the court explained, a doctor is not a “manufacturer” or “seller” under Texas law. So, “even if [the doctor] had expressly warranted the product in writing, his warranty would be legally ineffective.” Id. Moreover, literature produced by the defendant suggesting that the product would last fifteen to twenty years and “indirectly” informing doctors that the product has this “life expectancy” is, at best, an “indirect” warranty and not the express warranty the statue requires.
The second exception, the “latent disease exception,” injects a whiff of discovery rule into the otherwise airtight repose framework. It applies when the plaintiff was exposed to the product that is the subject of the action within 15 years after the date the product was first sold, but the symptoms of the plaintiff’s injury did not, before the end of fifteen years after the date of sale of the product, “manifest themselves to a degree and for a duration that would put a reasonable person on notice that the person suffered some injury.” Id. at *4 (citation to statute omitted). The plaintiff argued that he fit within this exception because he received his femoral stem implant within fifteen years after the product was sold and it caused his injury at a later date. (If this doesn’t make any sense to you, you are not alone. We still are not sure what the plaintiff meant.) The defendant argued that the exception did not contemplate an acute, traumatic injury like the plaintiff’s; rather, “it should only apply when there is a slow, insidious progression of a latent disease.” Id.
The court agreed with the defendant, explaining, “Medical device failures are not the prototypical latent injury situation.” To adopt the plaintiff’s interpretation “would create an exception that swallows the rule.” The court continued, “This is likely not the first case where a medical device manufacturer has sold a product to a doctor who immediately uses it for a joint replacement, and the product (unfortunately) fails many years down the line. Indeed, one could assume that in most cases, there is a temporal separation between exposure to a defective medical device and its failure. If the Court were to rule that Plaintiff could claim the benefit of [the latent disease exception], it would effectively create a “medical device exception” for an otherwise strict statute of repose. There is no evidence the Texas legislature intended this outcome.” Id. at *6. Moreover (and this seems to us to be the only necessary part of the analysis), the plaintiff admitted that his symptoms were apparent as soon as the femoral stem broke, which was less than fifteen years after implant, yet he did not file until more than a year later. By definition, as the court acknowledged, the latent disease exception did not apply to these facts.
Finally, the court rejected the plaintiff’s arguments that the statute of repose: 1) was invalid under the Texas Constitution’s “open courts” provision; 2) violated the concept of “fundamental fairness” protected by the Texas and U.S. constitutions; and 3) violated public policy by allowing “intentional” wrongdoers to take advantage of the statute. Holding that the statute of repose barred the plaintiff’s claims, the court dismissed the suit with prejudice.
The last time we blogged about a statute of repose decision, we got an angry letter (from guess which side of the bar) stomping and screaming about fairness. Just as life is messy, it’s not always fair. And we don’t think subjecting our manufacturer clients to perpetual liability is fair, either. We like statutes of repose. We like this case. And we’ll keep you posted on similar decisions.