Protecting Yourself from Statutes of Repose

Certain folks have persuaded the General Assembly that they are entitled to special treatment in our court system. Statutes of limitation mandate that every dispute be presented to a court within a certain period of time, and, while reasonable minds can differ about whether the given time period is too short, too long or too ill-defined, reasonable minds agree that there has to be some deadline for bringing legal action.

Statutes of repose are different. Statutes of repose eliminate claims, regardless of their validity, simply because a certain amount of time passed between one person’s conduct and the time a lawsuit was filed. That is, statutes of repose are triggered based on a date linked to the potential defendant’s actions rather than on the date of the injury or death. The result: persons injured or killed by another’s conduct lose their right to bring suit simply because they weren’t hurt or killed quickly enough.

Here is how a statute of repose works. Assume that a person receives a horrible injury after being ejected through the windshield in a car wreck on Sept. 21, 2013. Investigation reveals the seat belts in her car, a 2004 model, have been frequently reported as suffering from “false latching.” False latching means the seat belt latch plate looks, feels and even sounds like it is latched when inserted into the buckle but is not fully engaged. Minimal amounts of force will cause a falsely latched buckle to completely release the latch plate, meaning the occupant is essentially un-belted and unrestrained and moves as though he or she were never belted in the first place. The potential plaintiff maintains she secured the seat belt and had no reason to believe the latch was defective. She wants to bring a products liability claim against the product manufacturer.

Tennessee law requires that a products liability claim be brought within 10 years after the product is sold to the first user or consumer.[1] Thus, if research reveals that the 2004 car the potential plaintiff was riding in was sold in August 2003 (right when 2004 models first went on the market) her right to bring a claim was barred before she was injured because the 10-year period expired before the accident. If the car was sold to the first user or consumer on Oct. 1, 2003, she would have only nine days to file suit or her rights would be lost forever. If the car was sold to the first user or consumer on Sept. 24, 2004, she would have the typical one year to file suit under the statute of limitations, and the statue of repose would not bar her claim.[2]

To be sure, we can debate whether these laws are good for society. Proponents argue that such laws grease the wheels of commerce and the fact that people are from time to time killed or injured by these greasy wheels must be ignored so that the beneficiaries of such laws can provide jobs in the favored industry. Opponents of the laws argue no industry or person should be a “get out of jail free” card and that no consumer should lose a right before they know they have one.

Those debates will continue. What we know now is this: (1) statutes of repose cut off claims regardless of their validity; (2) one defendant can ask that fault be assigned to a non-party who cannot be sued because of the expiration of a statute of repose; and (3) fault allocated to a non-party protected by the statute of repose is ultimately borne by the plaintiff.[3]

The purpose of this article is to provide lawyers guidance on how to avoid the consequences of a statute of repose. Here is a checklist for lawyers faced with this issue:

  1. Know which interest groups that have lobbied for and received the benefit of a statute of repose. They include health care providers, product manufacturers, the construction industry, sellers of securities, officers and directors and surveyors.[4]
  2. Know what event triggers the running of each statute of repose and what period of time must pass before rights are lost.
  3. Know the exceptions, if any, to the general rule for each statute of repose.
  4. When offered representation, exercise reasonable diligence to understand whether a statute of repose is potentially applicable and, if so, whether (a) it has expired or (b) if it has not expired, when it will expire.
  5. If the statute of repose has expired against the only otherwise viable defendant, decline the case.
  6. If the statute of repose has expired against one of multiple defendants, determine whether the potential fault allocation against the now-immune non-party makes the case unviable against the remaining defendants. If so, decline the case. If not, advise the client of the potential impact of the statute of repose on the ultimate recovery.
  7. If the statute of repose has not yet expired against a possible defendant, determine if you have enough time to investigate and evaluate the case before the statute expires. If not, decline the case.
  8. If you have a valid claim against one or more defendants but are concerned that one of those defendants may attempt to assert fault against a person or entity potentially protected by a statute of repose that will vest in the future, file suit and promptly seek an order limiting the time period within which a defendant can assert fault against any non-party.[5] The entry of such an order will give you the opportunity to add the non-party potentially protected by a statute of repose as a party to the case if a defendant asserts fault against the non-party, forcing the defendant who asserted fault to attempt to prove the assertion.

Finally, when you explain to your potential client why you must decline the case or, if you can accept it, why and how the statute of repose will impact the recovery, make sure that he or she understands that these laws are the product of effective lobbying of the General Assembly. The common law should not bear such a stain.

Notes

  1. Tenn. Code Ann. § 29-28-103(a).
  2. The three-year statute of repose in health care liability cases arises frequently in potential delayed diagnosis of cancer cases. For example, assume that a pathologist misreads a slide and thus fails to catch cancer when it is still treatable. The cancer is not discovered until three years later and there is no longer any effective treatment. Under the statute of repose, the doctor cannot be sued unless the patient can prove that the doctor was guilty of “fraudulent concealment.” The three-year statute of repose also impacts children brain-injured at birth by a medical error — they too lose their rights unless their parents bring a claim within three years.
  3. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000). So, for example, if the products claim of the prospective plaintiff in the hypothetical above was barred by the statute of repose, the at-fault driver could still ask that fault be asserted against the car manufacturer. The at-fault driver would bear the burden of proof at trial on that affirmative defense. If the jury found the seat belt was defective and apportioned fault 20 percent to the at-fault driver and 80 percent to the car manufacturer, plaintiff would collect 20 percent of her damages from the at-fault driver and would bear the financial consequence of the 80-percent fault allocation to the manufacturer.
  4. The construction industry (Tenn. Code Ann. § 28-3-202 (four years after substantial completion of an improvement to real property)); product manufacturers (Tenn. Code Ann. § 29-28-103(a) (10 years “from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is shorter”; exceptions are made for asbestos injuries (no time limit) (Tenn. Code Ann. § 29-28-103(b)) and silicone breast implants (25 years)(Tenn. Code Ann. § 29-28-103(c)); the medical industry (Tenn. Code Ann. § 29-26-116(a)(3) (bars medical malpractice actions brought “more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.”); corporate officers and directors (Tenn. Code Ann. § 48-18-21) (three years “after the date on which the breach or violation occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after the alleged breach or violation is, or should have been, discovered”); surveyors (Tenn. Code Ann. § 28-3-114) (four years from the date the survey is recorded on the plat); and those involved in the sale of securities (Tenn. Code Ann. § 48-2-122) (two years after the act or transaction constituting the violation). See 17 John A. Day, Donald Capparella & John Walker Wood, Tenn. Prac. Tennessee Law of Comparative Fault § 5:12 (2013 ed.).
  5. This is accomplished by a request for a scheduling order under Rule 16 of the Tennessee Rules of Civil Procedure.

John Day JOHN A. DAY is a trial lawyer in Brentwood, Tenn. His most recent book, Compendium of Tennessee Tort Reform Statutes and Related Case Law, 2009-2013 (2nd ed.), is available by contacting Kori Conner at kconner@johndaylegal.com.