The long-planned New York trip is in the books, and it was a smashing success.   The Drug and Device Law Dowager Countess (almost 88) was ecstatic throughout, and all of the puzzle pieces meshed seamlessly.  We can report that The Music Man is a serviceable revival of a silly, illogical musical (most of our classic favorites fit this description – see Camelot).  But the secret ingredient that turned a minor smile into a wonderful evening was Hugh Jackman.  Candidly, we were not optimistic.  We have spent way too much money on shows featuring splashy headliners who ultimately disappointed.   But Jackman, only a passable singer, explodes with charisma and is a darn good dancer.  We couldn’t take our eyes off of him.   And we loved this best of all:  after the curtain call (at the end of a two-show day), Jackman remained onstage for a good twenty minutes auctioning signed show memorabilia (the gloves he and Sutton Foster were wearing) and raising thousands of dollars to benefit Broadway Cares – Equity Fights Aids.  The guy is the real deal (this has been confirmed by a friend who knows him), and the show was a “win” the second he stepped onstage.

Today’s case also had a “secret ingredient” – the ten-year statute of repose applied to cases governed by Tennessee’s Products Liability Act.– that ensured a defense win.  In Jones v. Smith & Nephew, 2020 Tenn. App. LEXIS 94 (Tenn. Ct. App. Mar. 14, 2022), the plaintiff/appellant was implanted with the defendant’s hip implant system in January 2009.  She alleged that metal-on-metal device released toxic cobalt and chromium ions into her hip joint, eventually causing her to develop metal ion disease. She alleged that this was discovered during November 11, 2019, surgery to replace the hip implant.  She filed suit 364 days later (Tennessee has a one-year statute of limitations for product liability cases), on November 10, 2020.  On November 20, 2020, she filed an amended complaint, adding an assertion that she had “a good faith cause to believe that [the case fit] within the meaning of an exception to Tennessee’s [ten-year] statute of repose” because the injuries she suffered “often take considerably longer to manifest themselves, in a fashion similar to injuries from exposure to asbestos.”  Jones, 2020 Tenn. App. LEXIS 94 at *3.  The defendant moved to dismiss with prejudice, arguing that the suit was barred by the statute of repose, the trial court granted the motion, and the plaintiff appealed.

She presented two issues for appeal: 1) whether the trial court erred in failing to determine that the “latent nature” of her disease took her claims outside of the statute of repose, and 2) whether the trial court erred in failing to exempt the claims from the statute of repose based on the defendant/appellee’s “fraudulent concealment” of the device’s “defective nature.”  Id. at *55.

Under the TPLA’s statute of repose, as the Court of Appeals explained, a product liability action is barred if it is not “brought within ten (10) years from the date on which the product was purchased for use or consumption . . . .”  Id. at *7.  The statute “is an absolute time limit within which actions must be brought, regardless of whether a plaintiff’s cause of action has accrued.”  Id. at *6.  In other words, a statute of repose is not a statute of limitations, triggered by the accrual of a cause of action – there are no “discovery rule” qualifiers built in to the pure “elapsed time” analysis applied to the statute of repose.

Tennessee law provides only two exceptions that allow lawsuits to survive the repose period:  minors must file suits within one year of attaining majority, and the ten-year repose period does not apply to suits involving asbestos or silicone gel breast implants.  Obviously, neither exception applied to the appellant’s hip implant, and the appellant did not argue otherwise.  “Instead, she ask[ed] the Court to create two new exceptions.”  Id. at *8 (emphasis in original).  She argued that other states make exceptions to statutes of repose for latent disease and for fraudulent concealment, and that Tennessee should do the same.

The court declined, stating, “We are not a legislative body, and Appellant’s request is not within our purview.  Our role is to apply the law as the legislature has written it.  Id. at *9.  The court explained that, under hornbook principles of statutory construction, it was required to interpret statutory terms “under their natural and ordinary meaning in the context in which they appear and in light of the statute’s general purpose,” without “forced interpretation.” Id. (citations omitted).  And the language of the statute of repose, as the court emphasized, is perfectly clear, providing that “any action against a manufacturer or seller or a product for injury to person . . . caused by its defective or unreasonably dangerous condition” is subject to the ten-year bright line rule.  Id. (emphasis in original).   Moreover, the General Assembly included express exceptions to the ten-year cutoff, twice amending the statute to do so.  Under “a well-established canon of statutory construction,” the “mention of one subject in a statute means the exclusion of other subjects that are not mentioned.”  Id. at *11-12 (citations omitted).  The court concluded, “The Court cannot expand/rewrite the statute to create a general latent disease exception or a fraudulent concealment exception to the TPLA’s statute of repose. Under the current version of the TPLA, . . . Appellant’s lawsuit falls outside the statute of repose and any exceptions thereto.”  Id. at *12.   Judgment affirmed.

Simple, basic, unambiguous stuff.   But the bigger principle is worth emphasizing:  the law is what it is.  Sometimes, that means that people who think they deserve their “day in court” are denied it.  Innovator liability is another example.  And only when courts resist pressure to turn jurisprudence into an insurance policy does the rule of law prevail.   Stay safe out there.