We have frequently reported on plaintiffs’ efforts to salvage untimely claims in the Taxotere MDL. See, for example, here, here, and here. As we explained here, the basic problem for many plaintiffs—who claim that the chemotherapy drug Taxotere caused them permanent hair loss—is how the MDL master complaint defines the plaintiffs’ alleged injury. Specifically, because the master complaint characterizes the plaintiffs’ injury as hair loss persisting more than 6 months after the completion of chemotherapy, each plaintiff’s claims accrued 6 months after he or she finished treatment. Yet many plaintiffs finished treatment years before filing suit. As a result, transferor courts addressing cases on remand from the MDL court have repeatedly dismissed Taxotere claims as untimely under different states’ statutes of limitation.

Today’s cases—Sledge v. Sanofi-Aventis U.S., LLC, 2024 WL 2896302 (D. Or. 2024), and Larsen v. Sanofi-Aventis U.S., LLC, 2024 WL 2894131 (D. Or. 2024)—reach a similar result but under Oregon’s statute of repose.

Unlike a statute of limitations, which “governs the time within which an action must be commenced after the cause of action accrues,” a statute of repose “limits the time within which an action may be brought” but “is not related to the accrual of any cause of action.” 54 C.J.S. Limitations of Actions § 6. Thus, “[s]tatutes of ultimate repose establish maximum time limits to commence an action, regardless of when the injury is discovered or any other circumstances that might extend a statute of limitations.” Sledge, 2024 WL 2896302, at *2; Larsen v. Sanofi-Aventis U.S., LLC, 2024 WL 2894131, at *2. Moreover, “unlike statutes of limitation, statutes of repose are generally not subject to equitable tolling.” Id. As a result, “[w]hen the ultimate repose period has expired, the claim is extinguished and no legally cognizable injury exists.” Id. (internal quotation marks omitted).

Thus, a statute of repose might categorically bar product-liability actions brought more than 10 years after the purportedly injurious product was manufactured even if the alleged injury is a latent disease that emerges only decades after use of the product.

Under the Oregon statute of repose in effect through the end of 2009, a product-liability suit had to be initiated within “[t]en years after the date on which the product was first purchased for use or consumption.” Or. Rev. Stat. Ann. § 30.905(2) (2007). Larsen began using Taxotere in November 2007 and filed suit in December 2017; Sledge started in January 2009 and sued in December 2020. The court held that because each plaintiff had “commenced” suit “over ten years after” having “first used” Taxotere, each plaintiff’s “claims fall beyond the time allowed by the [relevant] version of the statute of ultimate repose” and must be dismissed. Sledge, 2024 WL 2896302, at *2; Larsen v. Sanofi-Aventis U.S., LLC, 2024 WL 2894131, at *2.

The Oregon statute of repose was amended effective January 1, 2010. The amended version ties the period of repose, if any, to the law of the state in which the relevant product was manufactured (or imported, if manufactured abroad). It now provides that suit must be filed by the later of “[t]en years after the date on which the product was first purchased for use or consumption” or “[t]he expiration of any statute of ultimate repose for an equivalent civil action in the state in which the product was manufactured.” Or. Rev. Stat. Ann. § 30.905(2) (2009).

Not all states have statutes of repose but—as Larsen and Sledge illustrate—they are powerful defenses where they exist.