To borrow from the bartender with the twang and the bouffant at Bob’s Country Bunker, this blog’s got both kinds of medical products liability litigation – drug and device. And, while the difference between country and western music may be lost outside of Kokomo (and presumably Nashville), the difference between drugs and devices, admittedly blurry on some issues, is a little more concrete. One of those areas where we tend to see a divide is the applicability of statutes of repose. Typically, a drug products liability suit involves a drug that the plaintiff was taking or took shortly before suffering the alleged injury. That is because the active ingredients in drugs leave the body over time. So, generally there is no significant gap in time between injury and last usage or purchase. While medical devices on the other hand can be in place or in use for years before plaintiffs allege they suffered an injury. It is not uncommon for plaintiffs to make claims for medical devices that have been implanted for years either for device failures or because litigation has sprung up in the interim. None of this is absolute or meant to suggest that there are not drug cases that run afoul of statutes of repose. See e.g., Jenkins v. Novartis Pharmaceutical Corp., 2013 WL 1760762, at *3 (E.D. Tenn. Apr. 24, 2013) (implied warranty claim against drug manufacturer prohibited by statute of repose). As noted in our 50-state survey on the topic – statutes of repose come in all shapes and sizes. So, you need to know the local law on this one.
In Cortez v. Cook, — F.4th –, 2022 U.S. App. LEXIS 5570 (7th Cir. Mar. 2, 2022), that local law was Indiana’s. The case originated in the Cook IVF MDL pending in the Southern District of Indiana. The district court judge had dismissed plaintiff’s claims as time barred by the Indiana statute of repose rejecting plaintiff’s argument that the time under the statute should be tolled on the grounds of fraudulent concealment. Id. at *2.
At all relevant times plaintiff was a resident of Oregon. The Oregon products liability statute provides that suits must be commenced either within 10 years of first purchase or consumption or the “expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured” – whichever is later. Id. at *3. While the Indiana statute of repose is also 10 years, it has an additional provision that adds two years if the cause of action accrues between 8 and 10 years of initial delivery. Giving the plaintiff the benefit of the doubt, and all 12 years, the last possible date on which plaintiff could have timely filed her action was December 14, 2018. But the action was not filed until more than a year later on March 19, 2020. Id. at *4.
Plaintiff invoked fraudulent concealment and argued the statutory time period should be tolled accordingly. The doctrine of fraudulent concealment prohibits a defendant who has actively or passively prevented a plaintiff from discovering she had a cause of action to use the statute of limitations as a defense. Id. at *5. When the Seventh Circuit was confronted with the district court’s rejection of fraudulent concealment based on plaintiff’s failure to adequately plead facts to support it, the appellate court had a question of its own — “whether the doctrine of fraudulent concealment even applies to statutes of repose.” Id. at *6.
After receiving supplemental briefing on the issue but before issuing its ruling, the Seventh Circuit leaned that the Indiana Supreme Court answered the question for them – it does not.
[G]eneral statutes of limitation create a defense to an action after the time allowed for bringing the action expires, and principles of equity preclude a party from invoking that defense when that party’s own fraud or misconduct has prevented the time filing of the lawsuit. Statutes of repose, however, mark the outer boundaries of substantive legal rights because they limit the time during which a cause of action can arise . . . [i.e.] no cause of action exists once the repose period expires.
Id. at *6-7 (quoting Blackford v. Welborn Clinic, 172 N.E.3rd 1219 (Ind. 2021). As most courts acknowledge on this issue, that means that a statute of repose could bar an action before it even accrues. But these statutes “delineate a specific time frame in which the legislature has deemed it appropriate to bring a claim.” Id. at *7. Therefore, statutes of repose “supersede or override equitable rules of tolling.” Id. While the Indiana Supreme Court apparently included in its opinion a discussion of the possibility of tolling in “rare” cases involving fraud, that discussion was “hypothetical” and did not change that “the holding of the court, that fraudulent concealment does not toll statutes of repose, was unqualified.” Id. at *8.
Statutes of repose basically grant immunity once the period expires. That makes them powerful a powerful defense. And in Indiana the defense just got a little stronger.