24 www.uslaw.org USLAW For Whom the Will Not Toll: Defeating Claims with of Repose

Matthew R. Follett and Joshua W. Praw Murchison & Cumming LLP

INTRODUCTION statutes that bar a for product nearly half of all state legislatures had ad- Repose is defined as a state of rest or defect before the action even arises. This arti- opted one. These statutes were part of the tranquility, and in many states, a Statute of cle explores the history, function, exceptions, growing reform movement in response Repose may offer product manufacturers and conflict-of-law considerations to little to the insurance crisis of the 1970s and 1980s. a similar state of rest or tranquility when a known repose statutes. The rationale for these time-limiting statutes brings a claim for product defect was to address the problem of claims for in- many years after the product entered the BRIEF HISTORY AND caused by products manufactured in stream of commerce. Not to be confused RATIONALE FOR RULE decades past and the evidentiary issues posed with Statutes of Limitations, many states, and From the 1960s through 1980s, states once “evidence has been lost, memories have even the federal government, enacted repose began enacting repose statutes and by 1983, faded, and witnesses have disappeared.”1 USLAW www.uslaw.org 25

FUNCTION OF THE RULE manufacturer intentionally misrepresents Borrowing statutes vary by Both Statutes of Repose and Statutes or fraudulently conceals a material fact con- but nearly all work the same: a forum look- of Limitation serve as time-bars. But repose cerning the product, and that conduct was ing to the jurisdiction where the cause of ac- statutes are more venomous because they a substantial cause of the claimant’s harm. tion accrued and adopting its time-limiting sever a plaintiff from her claim after a fixed Another example is where the manufac- statute if it will extinguish the claim before period even if the injury itself happened turer itself creates an exception; for exam- it. Little mind is paid to whether the host long after. And while the all-to-familiar ple, if it warranties that the product is safe forum’s own procedural rules would save grounds for tolling a Statute of Limitation for a longer period than the applicable re- the claim had it arisen in its jurisdiction. In can range from the injury’s delayed discov- pose statute. A third type of exception exists Wenke v. Gehl Co., for example, a plaintiff ery to the plaintiff’s status as an inmate, in states that only apply their repose statute injured by a baler in Iowa sued its manu- these are usually inapplicable to statutes of to strict liability claims. 6 facturer in Wisconsin because Iowa’s repose repose. Rather, the grounds for tolling—if Another exception in some states oc- statute barred the claim.7 Wisconsin’s did even existent—are far more restrictive. curs if the manufacturer “revives” a plain- not, but the baler’s manufacturer filed for Repose statutes typically fall into two tiff’s claim or recommences the repose summary anyway based on the categories: “time-certain” and “useful life.” statute. In Indiana, if the manufacturer state’s borrowing statute.8 It was eventually Both start the repose period when the rebuilds, restructures, or reconditions the granted, which the Wisconsin Supreme product was bought, sold, or placed into product to the point of significantly ex- Court affirmed.9 commerce. Each differs, however, on how tending its life and rendering it in like-new Statutes of Repose may prove fatal it defines the repose period. condition, the repose statute runs from the even in states with borrowing statutes but Useful life statutes are less common time the rebuilt product is delivered into no repose statutes themselves. At least one and focus on whether the product caused the stream of commerce. Likewise, if a man- California Court rejected the no- injury after its “useful life” had expired. ufacturer incorporates a new but defective tion that the state’s borrowing statute was That question is left to the factfinder, who component into an old product, the repose inapplicable to another’s repose statute for first determines “useful life” by deliberating statute runs at the time the new component products simply because California’s was the period someone could reasonably ex- is added, and not from the manufacture of inapplicable to products.10 The court was pect to use the product safely. In Kansas, for the old product. persuaded in part by a federal court that example, a is generally free from had applied California law eight years ear- product liability if it proves by a preponder- CONFLICT OF LAW lier and had concluded the same. 11 ance of evidence that the harm happened Even in without after “the product would normally be likely repose statutes should familiarize them- CONCLUSION to perform or be stored in a safe manner.” 2 selves with the rule because nearly every The rush to enact repose statutes has “Time certain” statutes offer far more state has a statute permitting one juris- died down since 1983, but they remain a potency because plaintiffs cannot usually diction to adopt the time-limiting statute potent weapon for product designers and file the claim after a fixed period—even of another. And since goods increasingly manufacturers to insulate themselves from if the injury itself failed to timely surface. move through multiple jurisdictions before claims for older products. However, with The length for repose periods ranges from reaching consumers, plaintiffs have more the modern rise of planned obsolescence five years to nearly two decades. North choice than ever where to file suit. and increase in disposable rather than du- Carolina, for example, bars claims alleging In almost every state, defense bars have rable goods, the future effectiveness of re- a defective product 12 years after its initial used the repose statutes of one state to pose statutes remains to be seen. purchase.3 If involving products manufac- eliminate claims in another. Traditionally, tured within its borders, Oregon offers courts apply their own procedural rules to plaintiff’s no more than 10 years to file matters before them, and with most con- suit.4 In 1994, the United States Congress sidering Statutes of Limitation to be pro- passed the General Aviation Revitalization cedural, a claim barred in its native forum Matthew R. Follett is an at- Act of 1994, which shields small plane and could survive in another simply because torney in the Los Angeles parts manufacturers from liability for prod- it has a more generous time-limiting stat- office focusing his practice ucts they manufactured 18 years prior. 5 ute. This situation often entices what is on general liability, products commonly disdained—forum shopping. liability, and wildfire litiga- BE WARY OF EXCEPTIONS TO THE RULE To limit themselves as potential prospects, tion. Matthew is a graduate Some states have exceptions to their most states have enacted “borrowing stat- of Loyola Law School (JD) repose statute. One example is when a utes.” and UCLA (BA). Before law school he served for eight-and-a-half years in the U.S. Marine Corps as a counterintelligence spe- cialist. 1 CTS Corp. v. Waldburger, 573 U.S. 1, 1, 134 S. Ct. 2175, 2178 (2014). 2 K.S.A. § 60-3303. 3 N.C. Gen. Stat. Section 1-46.1. Joshua W. Praw is an attor- 4 ORS § 30.905. ney in the Los Angeles office 5 GENERAL AVIATION REVITALIZATION ACT OF 1994, 1994 Enacted S. 1458, 103 Enacted S. 1458, 108 Stat. 1552, 103 P.L. 298, 1994 Enacted S. 1458, 103 Enacted S. 145. focusing his practice in the 6 See e.g. Kellogg v. Willy’s Motors, 140 Ariz. 67, 68, 680 P.2d 203, 204 (Ct. App. 1984); Galvan v. Krueger Int’l, Inc., No. area of commercial general 07 C 607, 2011 U.S. Dist. LEXIS 3443, at *7 (N.D. Ill. Jan. 13, 2011); Dintelman v. All. Mach. Co., 117 Ill. App. 3d 344, 344, 72 Ill. Dec. 823, 824, 453 N.E.2d 128, 129 (1983). liability, products liability, 7 Wenke v. Gehl Co., 274 Wis.2d 220, 227. and toxic tort. Joshua is a 8 Id. at 228. graduate of University of San 9 Id. at 231. 10 Rash v. Bomatic, Inc. (Mar. 4, 2005, E034936) ___Cal.App.4th___ [2005 Cal. App. Unpub. LEXIS 1974].) Diego School of Law (JD) and 11 Rash v. Bomatic, Inc. (Mar. 4, 2005, E034936) ___Cal.App.4th___ [2005 Cal. App. Unpub. LEXIS 1974, at *16].) University of Wisconsin – Madison (BA).