How is the Georgia General Assembly like Dr. Seuss’s kind-hearted Horton the Elephant?  They both meant what they said and said what they meant.  Horton was talking about an elephant’s faithfulness (being 100%).  The Georgia General Assembly was talking about requiring that product liability claims be initiated within ten years from “the first sale for use or consumption” of the product allegedly causing injury.  Unlike Dr. Seuss who delivers Horton’s heroic tale in anapestic tetrameter, the court in L’Oreal USA, Inc. v. Burroughs, 2024 GA App. LEXIS 250, *14 (GA Ct. App. Jun. 21, 2014), limited its poetic meter to that one line.  And so, will this post.

Burroughs isn’t a drug or device case.  But as is often the case with prescription drugs, plaintiff alleged that she purchased and used certain cosmetic products over many years.  Her first purchase was in 1995 and her last was in 2014.  Plaintiff alleges she suffered an injury in 2018 caused by her prior use of those products and she filed suit against the manufacturers in 2022.  Id. at *22.

In response to defendants’ motion to dismiss her claim as barred by Georgia’s 10-year statute of repose, plaintiff argued that each purchase and use of the products “constituted a new exposure to a new product.”    Id. at *5.  An argument the trial court accepted, ruling that the “last sale” triggered the statute of repose.  Id.  Fortunately, the Court of Appeals disagreed.

Nowhere does the Georgia statute of repose mention application or use of a product.  Its sole triggering event is “first sale for use or consumption.”  To interpret the statute as plaintiff urges would make the word “first” “mere surplusage.”  Id. at *14-15.  Had the General Assembly wanted to allow “any” sale to be the trigger, rather that the “first” sale, it would have said so. 

In focusing on the “last” sale, the trial court misapplied an earlier decision by the Court of Appeals in which that court held that the “last sale” of a finished product to a consumer, rather than inter-manufacturer sales of component parts, was the relevant sale.  Id.at *9. 

Plaintiff next tried to argue that her claims should survive dismissal because the question was really one of causation.  She should be given the opportunity to prove that it was a product purchased within the repose period that caused the injury.  Id. at *13.  Not only did the court disagree, but it pointed out that plaintiff’s complaint made no allegations that would support this new theory.  Plaintiff did not allege that the products changed over time nor that it was the products she used within ten years of filing her claim that caused her injury.  Id. at *15.  If plaintiff wanted to make a run at bypassing the statute of repose, she needed to introduce supporting allegations into the “framework of her complaint.”  Id.

The trial court also made a passing reference to the statute of repose possibly triggering from plaintiff’s date of injury.  But the appellate court simply pointed out that statutes of repose are not statutes of limitations, and the former are not triggered by the injury.  Id.at *9.              

By no means did we undertake a complete survey of all products liability statutes of repose, but a quick search did reveal that several use the same “first sale” language as Georgia’s.  So, we hope that other courts would likewise hold that successive uses of the same product by the same person for which injury is claim do not restart the repose period.  While that is the message relevant to prescription drug litigation, we can’t help but end our post with Horton’s more profound and globally noteworthy lesson – A person’s a person, no matter how small.