What follows is a rather involved guest post by Reed Smith‘s Kevin Hara. Actually, Kevin has contributed enough to the Blog over the last couple of years that he’s more of a crypto-blogger than a guest. Instead of the more common case-specific post, Kevin has put together his own 50-state survey on state
This post is written by our Reed Smith colleague, Adam Masin, who is solely responsible for its content. He gets all the credit and all the blame.
This blog has previously written about Tennessee’s unusual statute of repose, here, here, and here, which bars claims “within one (1) year after the expiration date of the anticipated life of the product.” Tenn. Code Ann. Sec. 29-28-103. “Anticipated life” is a curious term. For example, the season finale of Homeland had many of its main characters wondering what their own “anticipated life” might be like given their circumstances. But we are not here to discuss the rather unrealistic-yet-compelling Homeland universe in which a bipolar CIA agent who never follows orders and is carrying the baby of the brainwashed former almost-terrorist who may not have bombed the CIA but still pretty much murdered the Vice-President can somehow find herself sent to Iran on purpose to oversee an impossible mission that involves trying to save her magically detoxed boyfriend (no spoilers here!). That’s a different blog post we’d like to write. We are here now to talk about “anticipated life” as it refers to products in Tennessee, the state that shares a border with the state where Homeland is filmed.
In Tennessee, “anticipated life of the product” is the “expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption.” Id. at Sec. 29-28-102. In Wahl v. General Electric Company, 2013 U.S. Dist. LEXIS 162320 at *19 (M.D. Tenn. Nov. 14, 2013), that meant that the plaintiff’s claims were barred by the statue of repose well before the plaintiff knew she had developed the condition she based her lawsuit on. The same was true in Montgomery v. Wyeth, and Spence v. Miles Lab. Other states have carved out latency or similar exceptions to their statues of repose that might apply to prescription medical products for various reasons, but Tennessee has not chosen that path.
Perhaps the only thing more unusual than Tennessee’s “anticipated life” statute of repose, however, is how courts have reacted to it. In Montgomery, the trial court began its opinion by questioning the propriety of the law:
Rarely does this Court suggest that a legislative body reconsider one of its enactments. The Court believes its role is simply to apply the law applicable to the case before it and not concern itself with the merits of the case. However, because of the result in this case, this is one of those rare cases where the Court believes it is appropriate to urge the Tennessee legislature to look closely at the law governing this case.
The court in Wahl ended its own opinion doing the same thing:
the court views the result in this case as manifestly unjust. Through no fault of her own, Wahl is left with an essentially incurable degenerative condition for which she has no recourse, because Tennessee extinguished her claims against GE before she could have discovered them. The time period here between the procedures at issue and Wahl’s NSF diagnosis was only about four years, which is not a time period that shocks the conscience. This court, as did Judge Collier in Montgomery, 540 F. Supp. 2d at 936 and 945, urges the Tennessee General Assembly to revisit the TPLA and its effect on Tennessee citizens injured by pharmaceutical products.
Every state has its peculiarities, oddities, firsts, and little known facts. For instance, did you know that New Jersey (this blogger’s home state) has the tallest water tower in the world or that it was the site of the first baseball game? Well, our case for today is from Tennessee. So, did you know?
The world’s largest artificial skiing surface is located in Gatlinburg
- Bristol is known as the Birthplace of Country Music
- Oak Ridge is known as the Energy Capital of the World
- Tennessee has more than 3,800 documented caves
- Nashville’s Grand Ole Opry is the longest continuously running live radio program in the world. It has broadcast every Friday and Saturday night since 1925
- Coca-Cola was first bottle in 1899 at a plant in downtown Chattanooga after two local attorneys purchased the bottling rights to the drink for $l.00
On Friday, Judge Posner issued an interesting opinion in Chang v. Baxter Healthcare Corp., No. 09-2280 (7th Cir. March 26, 2010). The opinion affirms the dismissal on statute of limitations and forum non conveniens grounds of claims brought against U.S. companies by plaintiffs from Taiwan. Along the way, Judge Posner has some interesting things…
This is a Bexis only post. Herrmann represents Wyeth and doesn’t want to go on record on this.
We mentioned the Montgomery v. Wyeth case before, here. Well we’re pleased to report that the Sixth Circuit today affirmed the defense summary judgment in Montgomery, slip op. here. The moral of Montgomery is…
For reasons too numerous to mention, neither of us can comment on the recent decision in Montgomery v. Wyeth, No. 1:05-CV-323, slip op. (E.D. Tenn. Mar. 19, 2008) (copy here) (now published at 540 F. Supp.2d 933).
But you should know about that decision, so we’re describing it (very briefly) here, stripped of…