Statutes of limitations have been around for a long time.  Ancient Greece and Rome had them.  In the criminal context, the concept is pretty simple—the government with jurisdiction has a certain amount of time after a crime has occurred to prosecute for its commission.  In some instances, this would serve as a check on governmental abuses, such as politically motivated prosecutions for remote events.  There also is and was a basic practical aspect to it.  Evidence over an alleged jaywalking incident from ten years ago will not have been preserved, memories of potential witnesses will have faded, and there is limited societal value in prosecuting most remote crimes to justify the resource allocation.  Other crimes, of course, will not have statutes of limitations at all because there is a clear societal benefit in allowing remote prosecution and potentially punishment for those crimes.  In the civil context, the equation is somewhat different.  Limitations largely exist to protect defendants from new lawsuits over very old events, not just because of the impact of time on the availability and reliability of evidence but because civil litigants typically seek relief that is time-bound.  Injunctions do not help much if they come too late.  Resolving property ownership or contractual obligations early on is a good idea.  We can even agree that a person injured by a product might want compensation for her loss while she can use it to pay bills, get care, etc.  However, for cases like ours where lawyer advertising and news coverage of litigation is usually why an individual decides to join a bunch of other individuals in a mass tort or joint serial product liability litigation, statutes of limitations almost never provide much certainty for the defendant.  This is mostly a product of the discovery rule, the typical dynamics in an MDL or coordinated proceeding, and the difficulty of raising statute of limitations in a motion to dismiss a Short Form Complaint or an intentionally fuzzy complaint.  Other issues like cross-jurisdictional class action tolling can play a role, but courts tend to be very lenient to plaintiffs in applying the discovery rule and very hesitant to dismiss a case as being time-barred by a statute of limitation unless the plaintiff really messes up.

Statutes of repose are a different matter.  Not all states have them for product liability and some have engrafted into their statutes clauses that exempt certain allegedly latent injuries from their scope.  In the products context, the classic statute of repose runs from the date of sale of the product not the date when the plaintiff was injured, became aware of the alleged cause of her injury, or should have become aware of the alleged cause of her injury. The date of sale is typically not going to rely on the subjective or self-serving testimony/assertions of the plaintiff, who, after all, has a significant interest in not having her product liability claim be barred by a statute of limitations.  We have seen courts find ways not to apply a statute of repose to bar the claims of a sympathetic plaintiff (e.g., by finding that the law of a state with no statute of repose should apply), but applying statutes of repose as written makes sense for product liability claims.  Where a claim exists by virtue of a state product liability act or other statute, then the state legislature can certainly specify how long that claim lasts in terms that do not allow a plaintiff to play dumb.  Unlike statutes of limitations, statutes of repose are substantive law, so they cannot be waived or overridden by equitable tolling.

Fittingly, the Bair Hugger MDL is old, having been established by the JPML in December 2015.  We have been writing about decisions from it and the Minnesota state mini-MDL since 2018.  The general goal for a “mature MDL,” as espoused by the federal courts and most defendants we know, is that the number of pending cases should be going down over time.  Whether the defendants want the MDL to stop accepting new cases, remand cases to federal courts around the country, and/or be involved in a settlement program, they do not want the number of pending cases to go up.  According to the data published by the JPML, the Bair Hugger MDL had 7657 pending cases out of 8815 total filed cases as of November 1, 2024.  Over the course of its tenth year of existence, the pace of new filings greatly outpaced dismissals, bringing the number to 9003 pending cases out of 10,424 total filed cases as of October 1, 2025.  (We picked that month because it was when the motion we will be discussing was filed.)  Since then, about 400 new cases have been filed/transferred, but the number of pending cases has dropped by almost 600 because the dismissals have picked up with almost as many over the last year as in the first nine years of the MDL combined.  There were clearly other things going on, but part of how the trend reversed was by the defendants pushing to get rid of time-barred cases.  (Years earlier, the Eighth Circuit wrongly reversed the well-reasoned exclusion of plaintiffs’ general causation experts, which changed the course of what could have been a tidy MDL.)

In re Bair Hugger Forced Air Warming Prods. Liab. Litig., No. 15-md-2666 (JNE/DTS), 2026 U.S. Dist. LEXIS 208805 (D. Minn. July 28, 2026) (report and recommendation), adopted 2026 WL 2690625 (Sept. 11, 2026) (“Hall”), concerns the claims of two fairly typical MDL plaintiffs whose cases had been pending for years before defendants moved for judgment on the pleadings under Fed. R. Civ. P. 12(c).  That the issues defendants raised—SOL, SOR, and failure to plead viable claims—had not been raised on 12(b) motions years earlier is a predictable consequence of MDL dynamics about which we have complained for years.  One plaintiff did not respond to the motion, so the Hall court only addressed the merits of the other and it never got past SOR.  (The plaintiff who did not respond had waited eight years from the onset of his injuries, and more than three from the creation of the MDL, to sue.)  The plaintiff at issue, a Tennessee, claimed injuries that developed soon after the use of the Bair Hugger during her July 6, 2009, knee surgery in Tennessee, but waited until July 11, 2016, to sue.  Tennessee law, including its product liability act and statute of repose, applied.  The statute of repose imposes three “must be brought” deadlines that apply to each product liability claim on top of the statute of limitations:  “[1] within six (6) years of the date of injury, [2] within ten (10) years from the date on which the product was first purchased for use or consumption, or [3] within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter.”  We have litigated and discussed the second and third deadlines before.  Hall involved the first, which we discussed here.  Plaintiff filed about a year after six years after her injury, which extinguished all her claims.  Plaintiff offered three fairly weak arguments to avoid the obvious.

She claimed the motion was “premature” because her own complaint was “ambiguous on [its] face” and there had been no case-specific discovery.  2026 U.S. Dist. LEXIS 208805, *15-16.  Oh, the irony of claiming a 12(c) motion on repose was premature when it was filed more nine years after a case was filed about seven years after the injury.  It also takes some gall to say that plaintiff injected sufficient ambiguity into her own complaint to prevent the court from determining her claimed injury occurred more than six years before she sued.  Of course, a 12(c) motion may be brought any time “[a]fter the pleadings are closed—but early enough not to delay trial” and these same issues could have been raised in a 12(b) motion had the case not been in an MDL.  Hall was not confused by the call for discovery.  The complaint “establish[ed] the relevant date of injury for purposes of the TPLA’s statute of repose” and plaintiff “identifies no additional facts that discovery could uncover which would alter that analysis.”  Id. at *15.

Plaintiff also asked the court to adopt discovery rule and fraudulent concealment exceptions not in the statute of repose.  Plaintiff did not claim the exceptions in the statute applied, so Hall followed numerous Tennessee decisions, including the ones we discussed in previous posts, in refusing to create non-statutory exceptions.  Id. at *14-15.  Plaintiff also asked to amend her complaint to develop the facts for a non-existent exception, which was a non-starter even if she had followed the D. Minn. Local Rules.  Id. at *16.

The next step seems to be to get sufficient rulings on common SOL and SOR issues to apply them across the remaining cases in an efficient manner.  For instance, the court could hold that a claim will accrue for the purposes of any SOL by the latter of the first surgery to address the alleged injury from the Bair Hugger and the creation of the MDL.  Or that the claims of any plaintiff whose applicable state law imposes an SOR that runs from the date of injury are barred if the case was brought more than the statutory period after the first surgery to address the alleged injury from the Bair Hugger.  In the Cook IVC Filter MDL, the court issued various rulings on SOR and SOL and then required counsel in other cases to either dismiss or certify that their cases were not time-barred under the court’s rulings.  Such an approach, especially if there is meaningful cost-shifting when a plaintiff resists the obvious implications of the court’s SOL and SOR rulings, would make sense.  After all, Rule 11 requires plaintiff’s counsel to ensure before they sue that they have a good faith basis to file a case that is not time-barred.  In the world of modern drug and device litigation, the costs associated with the 10%-50% of “pile-on” cases that are obviously time-barred are considerable.  Plaintiffs’ business model is predicated on avoiding the consequences for those cases and, if possible, even getting paid something for them.