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Written By: Alex Messmore
Senior Associate Editor, American Journal of Trial Advocacy
Most people are familiar with the concept of a statute of limitations. However, most people have not had experience with the statute of limitation’s scary big brother, the Statute of Repose.
To fully understand the dangers associated with a statute of repose, it is important to first understand the complexity surrounding statutes of limitation. A statute of limitations is defined as “a statute assigning a certain time after which rights cannot be enforced by legal action or offenses cannot be punished”[i] Put simply, a statute of limitations regulates/limits the time allowed for a plaintiff to bring a lawsuit—effectively serving as a bar to recovery.” [ii]
Each state in the United States has its own set of statutes of limitations, with each cause of action having its very own time limit before recovery is barred. But to complicate matters even more, some states provide for what is called a “discovery rule.”[iii] The discovery rule controls when the statute of limitations begins to run. In other words, the statute of limitations period does not begin until the cause of action is discovered. This serves to protect plaintiffs, especially in instances where the harm and the cause of the harm is not obvious, which may not be until after the running of the traditional statute of limitations.[iv]
The United States Supreme Court defines the “discovery rule” as “a doctrine that delays accrual of a cause of action until the plaintiff has ‘discovered’ it.”[v] This concept arose from claims of fraud, where a claimant may not be aware of their cause of action until after the traditional statute of limitations had already run.[vi] In more recent years, states across the country have begun to apply this doctrine to other types of claims, including those of personal injury and products liability.[vii]
So, what does this mean for medical device and pharmaceutical cases? In an ideal world, this would mean that the statute of limitations does not begin to run until the plaintiff has been made aware of the cause of action. Is that how the law works? No.
How the word “discovery” is applied varies from state to state, while some states don’t even provide for a discovery rule. For example, the state of Florida provides that the statute of limitations for a products liability claim does not begin to run until “the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence . . . .”[viii] On the flip side, the state of Idaho only provides for a two year statute of limitations for products liability claims, regardless of when the plaintiff was made aware of the cause of action.[ix]
Discovery rules are great for plaintiffs across the country; however, there exists yet another hurdle: the Statute of Repose. A statute of repose serves as an absolute bar to a cause of action, regardless of a plaintiff’s discovery of injury.[x] As the Georgia Supreme Court has held, “[u]nlike statutes of limitation, statutes of repose may not be ‘tolled’ for any reason, as ‘tolling’ would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of the statute of repose.”[xi]
How does this apply to medical device claims? Far too often, Plaintiffs do not learn of their injury until years after the procedure or use of the product. Is there an exception to this? No. A statute of repose is an absolute bar to bring a cause of action. [xii]
To best illustrate the dangers of statutes of repose, let’s look to the Biomet Hip Replacement litigation.[xiii] In October of 2012, lawsuits against Biomet regarding the M2A Magnum Hip Implant were centralized before the United States District Court for the Northern District of Indiana.[xiv] These hip implants were manufactured in the state of Indiana, which has a ten-year statute of repose.[xv] Indiana’s statute of repose provides that a product liability action must be brought “(1) within two (2) years after the cause of action accrues; or (2) within two years after the delivery of the product to the initial user or consumer.”[xvi]
In 2018, the Northern District of Indiana addressed this statute of repose in regard to the Biomet Hip Implants in the case Nunn v. Biomet, Inc.[xvii] The Plaintiff had received a hip replacement on March 8, 2004 and filed directly into the MDL on April 14, 2014.[xviii] Unfortunately for the plaintiff, the filing of her complaint was past the ten-year limit provided for in Indiana’s Statute of Repose and the Defendant filed for Summary Judgment, asserting the statute of repose barred the Plaintiff’s claim.[xix]
The Plaintiff in Nunn attempted to argue that her injury was fraudulently concealed, and therefore the statute of repose did not apply.[xx] To prevail on this claim, the Nunn court required a showing of evidence that would be admissible at trial indicating that Biomet fraudulently concealed her injury.[xxi] The only evidence presented by the Plaintiff was the “Possible Side Effects” communicated to surgeons from Biomet.[xxii] The Nunn court determined that this evidence was not sufficient to prove fraudulent concealment, and ultimately dismissed the Plaintiff’s complaint.[xxiii]
What does this mean for medical device litigation across the country? It stresses the importance of timely filing. It stresses the importance of researching the laws of forum states. Most importantly, it stresses the power statutes of repose play in product liability litigation.
[i] Statute of Limitations, Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/statute%20of%20limitations (last visited Sep. 23, 2020); see also Statute of Limitations, Black’s Law Dictionary (11th ed. 2019) (“A law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).”).
[ii] Statutes of Limitations and the Discovery Rule, Justia (2019), https://www.justia.com/injury/medical-malpractice/statutes-of-limitations-and-the-discovery-rule/#:~:text=In%20general%2C%20the%20discovery%20rule,reasonably%20should%20discover%20the%20injury (last visited Sep. 23, 2020).
[v] Merck & Co. v. Reynolds, 559 U.S. 633, 644 (2010).
[viii] Fla. Stat. Ann. § 95.031 (West).
[ix] Idaho Code § 6-1403(4) (West, 2005).
[x] Rachel B. Weil, Statute of Repose Bars Suit in Biomet Hip Implant MDL, Drug & Device Law, (2019), https://www.druganddevicelawblog.com/2019/01/statute-of-repose-bars-suit-in-biomet-hip-implant-mdl.html (last visited Sep. 23, 2020).
[xi] Simmons v. Sonyika, 614 S.E.2d 27, 30 (Ga. 2005), (quoting Nett v. Bellucci, 774 N.E.2d 130, 134(2) (Mass. 2002)).
[xiii] Biomet Hips Lawsuit: Hip Injuries & Settlement Amounts, Drugwatch.com, (2020), https://www.drugwatch.com/hip-replacement/biomet/lawsuits/#:~:text=Biomet%20Hip%20Replacement%20Lawsuits,the%20lawsuits%20for%20%2456%20million (last visited Sep. 23, 2020).
[xiv] Transfer Order, In Re: Biomet M2A Magnum Hip Implant Products Liability Litigation, MDL No. 2391, United States Judicial Panel on Multidistrict Litigation, (Oct. 2, 2012).
[xv] Weil, supra note 10.
[xvi] Ind. Code Ann. § 34-20-3-1(b) (West).
[xvii] Nunn v. Biomet, Inc., Case No. 3:14-CV-1487 RLM, 2018 WL 6727101 (N.D. Ind. Dec. 21, 2018).
[xviii] Id. at *1
[xx] Id. at *2