Product Liability of the 1980s: Repose Is Not the Destiny of Manufacturers

In response to the growing number of product liability suits and dramatic rises in insurance premiums, many state legislatures were persuaded to enact statutes of repose. Adopted under the pressure exerted by the lobbies of special interest groups, the statutes of repose stand as a form of special legislation that in effect denies the existence of a duty between a defendant and potential plaintiff after a specified number of years. In the context of the delayed manifestation injury, Professor Dworkin argues that the time bar set by the statutes of repose may be successfully avoided by several means: distinguishing between old-product injury and delayed manifestation cases, tolling the statute of limitations period, and challenging the constitutional validity of the repose statutes on equal protection and due process grounds. Although comprehensive legislative action addressing the special problems of delayed manifestation injury would be preferred, the courts are likely to counteract the harsh effects of the statutes of repose by emphasizing the rights of plaintiffs injured by technologically defective products.

Product Liability of the 1980s: Repose Is Not the Destiny of Manufacturers, Carolina Law Scholarship Repository, Volume 61 | Number 1 Article 7, 10-1-1982.

Certainty generally is an illusion, and repose is not the destiny of man.” Neither does repose appear to be the destiny of manufacturers. Despite recent legislation designed to give manufacturers repose from product liability, many factors indicate that these statutes will not afford the certainty sought.

Repose statutes were a response to the upheaval in product liability law of the 1970s. As consumerism swelled, injured parties gained greater awareness of their rights, and courts facilitated suits by wider adoption of theories such as strict liability and expansion of traditional tort theories. This development in turn led to an escalation in the number of suits brought against manufacturers, and in the number and amounts of awards. Insurers, reacting in part to this situation and to open-ended liability, raised premiums for product liability insurance by hundreds and sometimes thousands of percent. A feeling of crisis permeated the business and insurance world, and in the latter half of the decade these groups exerted their considerable influence to effect legislative changes to counteract these trends. As a result, product liability reform statutes have been passed by a majority of states, and passage of a federal bill may be forthcoming. These acts feature statutes of repose as the primary vehicle for alleviating the problem of extended liability. Concurrent with this legislative trend has been the continuing, countervailing common-law trend to increase manufacturers’ liability. A key factor in this increase has been the expansion of liability for widespread, time-delayed product injuries. Time-delayed injury suits may well come to dominate tort litigation of the 1980s, and for some manufacturers such liability will far exceed that which was threatened in the Seventies. Since the injury in this type of suit usually manifests itself after the repose period statutorily established by the new statutes, an increasingly important question is whether these statutes will be interpreted to time-bar such suits.

This article will examine the pro consumer trends such as market share liability and corporate successor liability, recent developments regarding statutes of limitations and statutes of repose, and the likely results when these conflicting common-law and legislative trends meet in the context of time delayed product injuries. Public policy issues, as reflected in decisions based on constitutionality, duty, estoppel, and tolling or suspension of the running of the limitations period, indicate that many courts will not find the statutes to be a bar.


The recognition and protection of a repose interest is not new. It has long been conceded that some time limitation on the ability to bring suit is necessary if practicality as well as justice are to be served.1 Defendants at some point should be able to institute financial plans with certainty, free from the threat of stale claims; plaintiffs, if truly aggrieved, should pursue remedies within a reasonable period of time; and defendants and courts should not have to deal with cases in which the passage of time seriously hampers the search for truth. For the traditional statute of limitations, the legislature balances the interests of the parties in light of these considerations, and determines that at some point the right to be free from stale claims must prevail over the right to prosecute them This determination is usually made to cover a wide class of actions, such as torts, or to encompass similarly situated parties.

The conflict between a plaintiffs interest in bringing suit and a defendant’s repose interest has been most sharply highlighted by cases in which the plaintiff has been injured but does not discover the injury, or does not discover the connection between the injury and the action causing it, until after the period set by the legislature has run. Interpretation of the statutes of limitations to bar such suits has not been consistent, but in the first half of the twentieth century courts generally put greater emphasis on the repose interest and strictly construed the statutes by starting the limitations period at the time of the incident causing the injury. Thus, the plaintiffs suit was denied if discovery of the injury took place after the statutorily defined period. This strict interpretation has gradually given way to a rule that focuses upon the actual time of discovery of injury. Such a rule now exists in some form in most jurisdictions when personal injuries are involved. Under this interpretation, the statutory period begins to run when the injury is or should reasonably have been discovered, not when the alleged tort is committed.

This “discovery rule” was first widely adopted in medical malpractice cases in which a foreign object was left in the patient’s body. In these cases the limitations period is short (generally one or two years), the nature of the injury often prevents the plaintiff from quickly discovering what is wrong, and he or she often is forced to rely on the defendant’s statements. The courts determined that under these circumstances plaintiffs should not be denied their right to sue. The discovery rule has now been adopted in many other tort areas, the courts having concluded that the equities involved in non medical cases are essentially the same as those present in the medical malpractice situation.

Increasingly, the trend toward favoring a plaintiffs right to bring suit for personal injury has been furthered by adoption of a causal-connection-accrual rule. Under this rule, counting for the limitations period does not begin until the plaintiff discovers both the injury and that defendant has caused it, and in some instances, not until the plaintiff also discovers he or she has a cause of action.

In a strictly commercial setting, in which damages are economic, courts have been more reluctant to adopt a discovery rule, and repose interests are emphasized. Stability and predictability are considered crucial in the business context if commerce is to thrive. This repose preference is reflected in the limitations period generally adopted by the states from the Uniform Commercial Code, which bars suits brought more than four years after the sale of the product in question. Here too, however, when personal injury results from a commercial transaction, courts have tended to deemphasize repose and opt for a plaintiffs right to bring suit. When personal injury is caused by a product, most courts have construed the suit to be a tort action rather than a warranty action under the U.C.C., and have allowed the tort accrual-from-discovery rule to prevail.

This preference for a plaintiffs right to sue was carried over into the construction of limitations statutes for strict liability. Since strict liability theory draws from both tort and warranty law, the use of either the four-year statute of repose of the U.C.C. or the tort discovery limitations period would have been supportable. Most jurisdictions, however, have favored the plaintiffs interests over repose interests and have applied the tort time-of-discovery limitation. Thus, discovery accrual has often been used in delayed manifestation suits, which are increasingly based on strict liability.

A recent case that demonstrates the degree to which courts are willing to stretch the discovery rule to accommodate a plaintiffs delayed manifestation product liability suit is Ferrer v. Richardson-Merrell, decided in 1980 by the California Court of Appeal. Plaintiff, a doctor, self-prescribed MER/29 in March 1960. A few months later he was unable to read, suffered severe dermatitis, was unable to work for four to six weeks, and suffered some permanent eye damage. Plaintiff knew that these reactions were “likely” related to the MER/29 and discontinued its use. In 1976 he developed cataracts, and at that time filed suit against the drug manufacturer. The California limitations period is one year. Citing “straws in the wind,” such as special limitations rules in nuisance and progressive occupational disease cases and currently developing merger exceptions of res judicata, the court found that plaintiff should be able to split his cause of action and sue for the cataract damage, especially since he did not claim that the 1960 troubles were MER/29 related. Accrual would begin not when plaintiff first suffered serious damage and knew the cause, but sixteen years later when he suffered further damage. “The simple fact is that rules developed against the relatively unsophisticated backdrops of barroom brawls, intersection collisions and slips and falls lose some of their relevance in these days of miracle drugs with their wondrous, unintended, unanticipated and frequently long-delayed side effects.

The equitable reasoning behind these changes clearly expresses this and other courts’ greater concern for a plaintiffs right to bring suit than for a defendant’s repose interests. If a plaintiff has been blameless in failing to discover the injury, then justice requires that the suit be allowed. The statute of limitations is construed to require only that the plaintiff act within a reasonable time after discovering that his or her rights have been invaded. In opting for a tort discovery approach, courts have emphasized the rights of innocent plaintiffs and safety considerations, as compared to the interests of defendants who were responsible for their products, limited expectations of defendants concerning repose, and stale evidence. Many of the same considerations have prompted the courts to expand or adapt traditional tort theories to facilitate delayed manifestation suits when the delay has caused non statute of limitations problems in bringing suit.


An example of this facilitation to overcome time-related problems can be seen in recent DES decisions. DES, or diethylstilbestrol, is a drug that was generically prescribed between 1941 and 1971 for the prevention of miscarriages. The medication causes cancer and precancerous growths in daughters of the ingesters a minimum of ten to twelve years after ingestion. Because of the delayed manifestation of injury and the generic nature of the drug, which permitted pharmacists to fill doctors’ prescriptions and refills with whatever was on hand, plaintiffs were unable to identify which of the over 200 DES manufacturers produced the drug that injured them. Recently, courts have started allowing these suits despite the inability to identify the specific manufacturer, rather than nonsuiting on the causation question as they previously had done.

The California Supreme Court made the most important and controversial change in Sindell v. Abbott Laboratories, Inc. In Sindell the court expanded the earlier ground-breaking precedent of Summers v. Tice by adopting the theory of market share liability. Under this theory, if a plaintiff joins enough defendants so that together defendants had a “substantial share” of the relevant market, the burden of proof is shifted to the defendants to show that they, individually, did not produce the drug that injured the plaintiff. Since defendants have no better information than plaintiffs, they generally are unable to meet this burden. The court held that this shift was fair, however, because defendants who were responsible for marketing the drug have to pay only a percentage of the judgement proportionate to their share of the market. Other courts recently have reached similar results, although not necessarily by the same theory.

Another time-related change in products liability law designed to facilitate plaintiffs’ suits is the recent liberalization of corporate successor liability in some jurisdictions. Traditionally a successor corporation did not assume the debts or liabilities, including tort-related liabilities, of the corporation it purchased if all assets were transferred free of fraud and no provision was made for the successor corporation to do so. In 1977 California broke with tradition by adopting the “product line” approach, allowing the successor corporation to be sued in strict liability for a product it did not produce if that product was in the same product line as the one the successor corporation was now manufacturing. A primary reason cited by the court for changing the law was that plaintiffs otherwise would be remedyless because their recourse against the predecessor was virtually extinguished by the acquisition. In addition, the successor had the ability to assume the risk-spreading role and purchased the risk along with the good will of the predecessor.

New Jersey recently followed California’s lead and adopted this theory in Ramirez v. Amsted Industries The New Jersey Supreme Court used the product line concept to allow suit by a plaintiff injured by a power press manufactured in 1948 or 1949. In another case decided the same day the court expanded the concept by allowing suit against an intermediate successor corporation who was no longer producing the line, but was still in business Pennsylvania adopted the Ramirez product in formulation because it implemented “the social policies underlying strict product liability.

In explaining the reasons for facilitating plaintiffs’ suits in these circumstances courts again have emphasized the innocence of plaintiffs, who would otherwise be left remedyless, as compared to the responsibility of defendants for marketing the product, spreading costs, and promoting safety, as well as the relative unimportance of stale evidence. These are essentially the same considerations that initially prompted many courts to adopt strict product liability, and the facilitation of claims represents a continuation of that pro-plaintiff/consumer trend. The new statutes of repose fly in the face of this trend


Modem statutes of repose differ from the conventional statutes of limitations because they heavily emphasize the repose interest in order to protect a special class of potential litigants. They set a definite accrual time unrelated to discovery of injury, and in essence deny that the defendant owes a duty to the plaintiff after a specific number of years. In product liability repose statutes, for example, it is the age of the product, not the timeliness of the plaintiffs actions, that is the focus of the statute, and suit often is barred before injury occurs. Rather than following the balance struck by the courts between a plaintiffs right to sue and a defendant’s repose interests, the legislatures, at the request of and under pressure from special interest groups, have chosen to protect defendants in order to solve a perceived crisis in various segments of the economy. Such statutes have been passed to protect architects and builders, and health care providers, as well as sellers of products.

Architects’ and builders’ repose statutes were the first passed and were generally upheld. This success offered support for the passage of similar medical malpractice legislation, but increasingly the statutes protecting health care providers, as well as those protecting architects and builders, have failed to withstand challenge. The product liability statutes of repose, the latest legislative time control effort, are even more likely to meet with failure in the courts, especially when challenged in the context of delayed manifestation suits, despite the assumptions of most commentators.

Several indications support this assumption. The strong pro-plaintiff/consumer bias, which has led to the wide adoption of strict liability, the expansion of theories to facilitate delayed manifestation suits, and the application of discovery-of-harm accrual for statutes of limitations, has already been discussed. These trends and biases will not easily be set aside by the courts, especially when it is not clear that the legislators had delayed manifestation cases in mind when the repose statutes were enacted, when there is less of a crisis than originally feared, and when the statutes, which are special legislation, change substantive rights but may not alleviate the problem. In addition, although statutes of repose affect a relatively static number of people injured by architects, builders, and health care providers, many new types of product-caused delayed manifestation injuries are discovered yearly. The non-suiting of hundreds of thousands of injured plaintiffs cannot fail to influence judicial decisions.


Courts faced with plaintiffs whose injuries do not manifest themselves until after the repose period has elapsed can pursue several options to allow plaintiffs’ suits. A few courts have already used some of these options, which include distinguishing between delayed manifestation and delayed injury (oldproduct) suits, tolling, and declaring the repose statute unconstitutional. The advantage of the first two options is that delayed manifestation suits may be prosecuted without directly upsetting legislative judgment in an area in which wide discretion has traditionally been allowed. While no court has yet distinguished delayed manifestation from delayed injury in avoiding the time bar, good reasons exist for doing so.

A. Delayed Manifestation and Delayed Injury

As the liability of manufacturers increased and insurance rates soared, both manufacturers and insurers tended to focus on the “long-tail” problem as the primary cause of their ills. Manufacturers viewed the extended potential liability for old products as making them insurers of their products, and insurers cited that phenomenon as one of the main factors in their inability to predict liability and hold down premiums. “Horror stories” were cited to prove the point -liability for a 17-year-old bus, a 24-year-old tractor, a 30- year-old pickling machine. When insurers and business groups went to the legislators to lobby for change, similar examples of old products causing injury were used. Little attention was paid to injuries that were old by the time they manifested themselves. Thus, there is little indication that legislators meant to include delayed manifestation cases within the repose statute’s bar.

While the equities involved in old-product injuries and delayed manifestation injuries are similar–“innocent plaintiffs” are barred from suit before they discover their injury-there are aspects that might have led legislatures to differentiate. Most old-product injuries involve capital goods in a workplace situation. Thus, while plaintiffs may be barred from suit against the manufacturer, they will still receive payment under workers’ compensation plans. The same is not true for a large proportion of persons injured by products causing delayed manifestations, such as drugs, radiation, and hazardous waste. Barring suit against the manufacturer in these cases will bar recovery altogether.

A similar distinction may also be made based on the type of product involved. Capital and other long-lived goods very often are sold with an express warranty that extends beyond the repose period. Since almost all the statutes of repose except express warranties from the repose period, these kinds of suits would not be barred, and plaintiffs injured by warranted capital goods still will have an alternative recourse in the courts. Delayed manifestation claimants will not.

A final distinction concerns the number of plaintiffs barred from remedy. The number of plaintiffs injured by old products who are barred from suit is relatively quite small. A study by the Insurance Services Office indicates that cases based on products over six years old which caused injury are less than hree percent of litigated claims. The number of delayed manifestation cases is approaching 100,000 annually and growing yearly as new hazards of “advances in science and technology” are discovered.

Whether these differences would have prompted different legislation is problematic. There are indications that when delayed manifestation problems were brought to the drafters’ attention, some allowance was made. Some legislatures exempted specific delayed manifestation injuries such as asbestiosis and ionizing radiation injuries from their statute’s coverage, and the drafters of the Model Uniform Product Liability Act, who made the most comprehensive study of the situation, exempted delayed manifestation cases altogether.

The drafters of the Model Uniform Product Liability Act, after balancing plaintiffs’ and defendants’ interests, favored plaintiffs by refusing to adopt a statute of repose because it “may deprive a person. . . of the right to bring a claim based on a defective product before the injury has actually occurred.” Instead, they substituted a rebuttable presumption that after ten years a product is beyond its useful safe life, and increased the burden of proof necessary to overcome this presumption. Nevertheless, even after rejecting a statute of repose the drafters felt delayed manifestation plaintiffs needed further protection, and exempted them from the coverage of the ten-year presumption. Thus, under the Model Act delayed manifestation cases would be governed by the usual time-of-discovery statute of limitations. A few states have also adopted the rebuttable presumption approach.

Legislative history is seldom an infallible indication of intent, and speculation about reactions to different kinds and strengths of information is risky at best. Courts, however, may take cognizance of these differences and, following the lead of the Model Act, find that the statutes should not apply to delayed manifestation cases. Statutes in derogation of the common law are to be construed narrowly, and such a construction would be consistent with this tradition. In addition, courts deluged with thousands of plaintiffs who are denied compensation through no fault of their own are more likely to be influenced by the volume and to make allowances. Once some courts do so, others will likely follow, especially those that see deference to the legislature as “out of vogue” and believe that the idea “that changes should come from the legislature is not in good repute.”

B. Tolling

Another approach the courts could take that would both generally uphold the repose legislation and allow delayed manifestation suits is the application of tolling. Tolling of a statutory limitations period has traditionally occurred to give an injured party a reasonable chance to pursue his or her claim. Limitations periods traditionally have been tolled in cases involving fraudulent concealment, absence of the defendant from the jurisdiction, minor or incompetent plaintiffs, wrongful death, and contribution and indemnity claims. In addition, courts have used time extensions in product liability cases to avoid nondiscovery statutory time bars by finding continuing duties to correct or wam, by starting accrual for cumulative injuries from multiple uses at time of last exposure, and by recognizing express warranties.

While a few states have specifically included an individual tolling provision in their product liability reform statutes, most statutes are silent as to the applicability of these traditional tolling exceptions to their repose periods. Tolling is clearly inconsistent with a firm repose period and would not allow the actuarial certainty for which the statutes were passed. Yet the notion of equitable tolling is long established. The application of tolling exceptions for infants and other incompetents, as well as for absence from the jurisdiction seems likely in the delayed manifestation context. These traditional exceptions will affect few cases and will not unduly upset repose interests.

The United States Supreme Court recently upheld the application of tolling in a product liability suit involving a birth control drug but no delayed manifestation injury. In G.D. Searle & Co. v. Cohn, plaintiff brought suit eleven years after suffering a stroke allegedly caused by defendant’s contraceptive. Defendant, an out-of-state corporation, was served without problem under New Jersey’s long-arm rule. When defendant moved for summary judgment based on New Jersey’s two-year statute of limitations, plaintiff alleged the statute should be tolled because defendant was “not represented” in New Jersey “by any person or officer upon whom summons or other original process may be served.” The Court upheld a New Jersey Supreme Court finding” that being amenable to service through a long-arm statute is not the equivalent of inpersonam service and rejected the district court’s reasoning that since the long-arm statute, which made foreign corporations amenable to service in New Jersey, was passed after the tolling provision, the tolling provision no longer served a logical purpose and therefore discriminated against unrepresented foreign corporations. The Court remanded the case for a determination whether requiring a foreign corporation to register to do business in New Jersey to avoid tolling, and thereby subjecting the corporation to all duties and liabilities imposed on domestic corporations, is a violation of the commerce clause.

It is not clear that this statute as interpreted by the New Jersey Supreme Court can survive a commerce clause challenge. But if it does, and if other states adopt similar interpretations, courts can avoid statute of limitations bars in most cases. Thus, the remanded case will play a very important role in resolving the balance between plaintiffs’ right to bring suit and defendants’ repose interests. In any event, the minimal requirements for tolling adopted by the Court1 are likely to encourage other courts to recognize more readily tolling exceptions in the delayed manifestation context with greater flexibility.

Tennessee’s ten-year product liability statute of repose was tolled before the Cohn decision in a case involving a minor with a delayed manifestation injury. In Tate v. Eli Lilly & Co. the District Court for the Middle District of Tennessee found that the statute, which runs from six years from date of injury or ten years from the date on which the product was first purchased for use, except for minors who must bring suit within one year of reaching majority if that occurs sooner, did not bar plaintiff’s DES claim. The court found that Tennessee had a long-standing policy of protecting the accrued rights of minors until they reach majority and, therefore, the phrase “whichever occurs sooner” for minors should have no effect. The majority believed that simple inadvertence was responsible for the legislature’s failure to delete the phrase during the deliberative process. A different Tennessee district court, however, refused to allow an adult’s DES suit only a month later, finding the ten year statutory bar “harsh” but constitutional.

An Illinois appellate court, in deciding a constitutional challenge to the ten-year statute of repose brought by an eight-year-old boy injured by a product purchased ten years and eleven days before his injury, did not apply tolling. Using an approach similar to a rational basis test, the court found the statute denied neither due process nor the state’s guarantee of a remedy for every wrong. Denial of tolling in such a situation has been interpreted as a denial of due process by some courts and commentators, and will be discussed in the next section. This suit involved a typical delayed injury which was clearly within the contemplation of the legislature when the statute was passed. It is not clear whether the court would decide the same way if a delayed manifestation injury were involved.

Tolling exceptions involving fraudulent concealment and continuing duties would have a much greater impact on plaintiffs’ ability to bring suit, especially in delayed manifestation cases. Delayed manifestation situations are particularly amenable to charges of defendant’s fraudulent concealment or failure to warn. Because of the nature of the injury, delayed manifestation product-related injuries generally involve a time lag between the discovery of the cause and effect relationship and the general public knowledge of that relationship. Product manufacturers are in the best position to collect data on their products’ effects and usually have information regarding injuries or the possibility of injuries before others gain such knowledge. Many of the delayed manifestation suits, such as those involving DES and asbestos, are based in part on allegations that defendants knew or should have known that the product was dangerous, but kept that information from the public and continued to advertise and market the product or expose people to it. Thus, the seeds of-an estoppel argument are planted in most delayed manifestation cases.

Courts have consistently applied tolling in fraudulent concealment cases as an equitable bar to estop a defendant from benefiting from his own wrongdoing. The Supreme Court, recognizing the equitable necessity for such a bar in a recent discovery-rule case said:

That plaintiff has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter.

In the former case, the Court would begin accrual at the time of discovery, but not in the latter, when plaintiff is aware of his injury but not of his legal rights. Other courts have recently expressed similar concerns, and have ruled accordingly.

The same equities are involved in cases alleging continuing duties to warn, which are increasingly providing a basis for recovery. The Indiana Supreme Court refused to toll the state’s ten-year statute of repose in a challenge based in part on such an argument. The case, however, did not involve a delayed manifestation injury. Other Indiana courts have indicated that a delayed manifestation case might lead to different results.

In light of today’s proconsumer atmosphere and the willingness of courts to construe limitations statutes to facilitate suits, it is most unlikely that courts will not apply tolling to estop a defendant from benefitting from its alleged wrongdoing in delayed manifestation cases. Use of tolling exceptions will enable courts to allow delayed manifestation suits while maintaining the statute’s constitutionality and bar to old-product suits. Nonetheless, the greater the number of exceptions to the bar that are allowed, the more arbitrary the statute will appear, and its use as a predictor of potential liability will be minimal. Thus, use of estoppel may prove to be only a temporary measure on the way to invalidation of product liability statutes of repose.

C Constitutionality

Constitutional challenges are the most common and comprehensive way of eliminating strict repose periods. Statutes of repose are increasingly being overturned on constitutional grounds as courts more closely examine the actual equities involved. At least eleven states have found architects’ and builders’ repose statutes unconstitutional. A similar number of courts have found part or all of the medical malpractice reform statutes constitutionally infirm, and many of these contain repose periods. While a few courts have based their decisions on equal protection or due process grounds, most have based them on state constitutional provisions granting access to the courts for redress of injury or on provisions barring special legislation. These provisions protect interests similar to those protected by due process and equal protection clauses, and courts usually discuss them as if they were interchangeable. Product liability statutes of repose are subject to challenge on the same grounds.

1. Equal Protection and Special Legislation

In an equal protection challenge, the classifications made by the legislature must be shown to be reasonably related to the state’s objective in order to be upheld. The reasonableness of the relationship is subject to different levels of scrutiny-rational basis, intermediate, and strict scrutiny. The closer the scrutiny, the less likely the legislation is to be upheld. It is clear that a strict scrutiny test is not appropriate for statutes of repose because they involve neither suspect classifications nor fundamental rights. Thus, courts must choose between rationality and the intermediate (close and substantial relationship) standards when reviewing repose statutes on equal protection grounds. Courts have invalidated repose statutes under each of these standards in non-product liability cases.

Most courts have used the less demanding rationality standard to test the architects’ and builders’ repose statutes, and although most have found the classifications rationally related to the goal of controlling liability in the construction industry and thereby alleviating the “crisis,” an increasing number are not so finding. Like statutes of repose for manufacturers and sellers of products, architects’ and builders’ statutes of repose were passed to solve a perceived crisis in the industry caused by changing laws and expanded liability. Although coverage of the architects’ and builders’ statutes is not uniform, most apply only to contractors, builders, architects, and similar groups involved in the construction process, but not to groups such as owners and material suppliers who also face significant liability. It is this limited coverage that has proved fatal under special legislation and equal protection challenges. Following the lead of the “seminal” decision of Skinner v Andersen, courts, in overturning the statutes, have found no rational reason why only certain groups should be singled out for protection from all those who are potentially liable.

A similar challenge may be made to the product liability statutes of repose: they protect only some of the persons or groups potentially liable in a product liability suit. Owners of products or premises where injuries occur are not specifically granted the immunity given to manufacturers and sellers. Nevertheless, this denial of equal protection argument is less persuasive for the product liability statutes because these statutes protect a greater number and wider class of potential defendants, or simply bar most actions based on product injury no matter who the defendant may be. Because of this wider coverage and inclusion of groups most likely to be defendants and most involved in the crisis, courts are more likely to find the legislation rationally related to the goal of reducing insurance rates by limiting liability. At least one court has so held in an old-product injury suit. An argument based on denial of equal protection to manufacturers of short-lived as opposed to long lived products is also unlikely to be successful when examined on a rational relationship basis.

An equal protection argument potentially more appealing to today’s courts in the product liability setting is based on the denial of equal protection to plaintiffs. Persons whose injuries do not manifest themselves until after the running of the statutory period are denied the protection accorded to plaintiffs whose injuries are readily apparent soon after the product is used. Similarly, persons injured by older products do not receive the same protection as those injured by newer ones. Even though these classifications may not be seen as irrational, they are likely to be overturned if an intermediate standard is used.

While no one disputes the legislature’s right to make distinctions, the classifications must not be arbitrary. Under a mere rationality standard there is evidence that a repose period which cuts off a plaintiff’s right to sue for oldproduct injuries after ten years is not arbitrary. The legislature has chosen a time period during which almost all evident product injuries occur. The assumption behind choosing a fairly long period is that if a product functions safely for a number of years, it may be assumed to be nondefective, and if it causes injury after that time, the injury probably occurred for some reason unrelated to defect, such as product misuse, alteration, or use beyond the product’s reasonable safe life. Thus, while a more rational distinction could have been made-for example, setting different periods for short-lived and long-lived capital goods-no reasonable period would have been perfect, and some repose was considered necessary to stabilize insurance rates and therefore to help ease the crisis. If some cutoff period is acceptable, one that allows a fairly long time for a product to manifest defects and allows for inclusion of almost all old-product suits is likely to meet the minimum rationality test.

Delayed manifestation equal protection challenges might be more successful because a much larger number of these cases are excluded by the statutes, and the courts and legislatures traditionally have seen greater inequities in not allowing suit for someone who is injured and does not know it. In addition, precedent exists under the medical malpractice statutes of repose for disallowing such distinctions. Delayed manifestation injury cases are similar to delayed discovery of foreign object cases in medical malpractice. The latter were generally exempted from inclusion in the statutes of repose passed to protect health care providers, and a discovery statute of limitations was maintained for them. There is little rational reason to deny suit to delayed manifestation plaintiffs, whose injuries are often deadly or life-threatening and debilitating, while allowing suit to plaintiffs injured by doctors and other health care providers who have left foreign objects in their bodies. Both the medical malpractice and product liability statutes were passed to solve an economic crisis, and that solution will not be helped by allowing suit in one case but not the other.

The New Hampshire Supreme Court, which recently overturned a medical malpractice statute of repose in Carson v. Maurer, used a middle standard of review to find that distinctions made on the basis of delayed discovery due to hidden injuries were unconstitutional. One provision of New Hampshire’s medical malpractice act reduced the statute of limitations from six to two years, and started it running from the commission of the act, not discovery, unless suit was based on the discovery of a foreign object in the body. In the latter instance, suit had to be commenced within two years of the time of discovery. The act also abolished the tolling of the statute for infants and incompetents.

The court found the legislature could not abolish the discovery rule for just one class of medical malpractice plaintiffs, nor could it penalize infants and incompetents in relation to their kind under nonmalpractice circumstances. Other courts have indicated a willingness to adopt similar holdings. The court in Carson used an intermediate standard of review in examining the constitutionality of the statute. In so doing it followed several other courts that have used this stricter standard to find the medical malpractice acts unconstitutional. The use of this middle tier approach would be equally appropriate in examining product liability statutes of repose.

It is fitting to use a heightened review for this type of legislation for several reasons. Unlike traditional statutes of limitations which set procedural duties, statutes of repose extinguish substantive rights by denying a duty of care from manufacturers to consumers. This removal of substantive rights, which affects thousands of plaintiffs injured by widely used products, requires more careful scrutiny than that accorded procedural changes. Moreover, in these instances the heightened review becomes even more compelling because of the aura of special legislation. The repose statutes were brought to the legislators and supported by a lobby of the very groups they were intended to protect. These are groups that wield considerable power, money, and influence and can therefore exert considerable pressure on the lawmakers. Those injured by the special legislation had no such power or influence to act as a counterbalance, and no unified voice to represent them. The legislation was presented in a “crisis” atmosphere in which quick solutions rather than careful examination of actual facts and figures were the order of the day. It is precisely in this type of situation, in which it is clear that both sides were not adequately represented and that the substantive rights of the under-represented group were harmed, that the middle review is appropriate.

Use of such a standard comports with the views of modem constitutional writers who predicted and called for greater use of a stricter standard in a wider variety of cases over a decade ago. Professor Gunther foresaw the increased use of closer scrutiny in a wider range of cases in which interests were not adequately represented. More recently, Professors Nowak and Ely have urged more careful review of issues involving equal protection. Ely, whose book Democracy and Distust has sparked considerable discussion and debate, divides provisions of the Constitution into two groups: (1) mandates from the Framers requiring certain actions, and (2) provisions that are open-ended statements of ideals whose substance is to be filled in subsequently by courts. The equal protection clause belongs to the latter group. In setting the parameters of equal protection and in reviewing legislation in light of them, courts are to be guided by the notion that broad participation in the processes and distributions of a representative democracy, rather than individual notions of fairness and due process, is the crucial goal. The issues involved in these statutes of repose do not rise to the blockage of participation in democracy as does the denial of voting privileges, nor do they involve a discrete and insular minority requiring substantial constitutional protection. They do, however, call for greater scrutiny than mere rationality because of the lack of participation and power of the harmed group and the importance of the right denied.

Courts have used this middle standard when reviewing statutes denying compensation for bodily injury in non-product liability contexts. In Hunter v. North Mason School District for example, the Washington Supreme Court found that a statute which limited plaintiff’s right to bring suit against the government by requiring formal notice of the claim within 120 days placed a “substantial burden” on a “substantial property right . . . in many cases fundamental to the injured person’s physical well-being and ability to live a decent life.” Since most tort victims did not know of the notice requirement, suit against the government in most instances was barred, while tort victims of nongovernmental defendants were allowed three years within which to bring suit. Such a distinction, when tested by a middle standard of review because of the “substantial” importance of the right, denied equal protection. The same reasoning has been applied in the medical malpractice context. The court in Carson v. Maurer, in fact, cited Hunter as primary support for its holding that barriers put in the way of a medical malpractice victim’s ability to bring suit affected an important substantive right and therefore should be judged by the use of the middle standard. Courts in other contexts have similarly used a more than mere rationality test when barriers to the right to bring suit were involved. The same reasoning is applicable to denial of compensation for bodily injury caused by products.

Once a stricter, middle standard is used, it is appropriate for courts to examine whether a crisis actually exists and, if so, whether the legislation will alleviate that crisis. It is appropriate to question both the existence of the crisis and the extent to which increases in awards contributed to that crisis, because without a crisis the classification would neither serve an important governmental end nor could its alleviation be substantially achieved. In the delayed manifestation situation, the answer to both these questions appears to be no. As in the medical malpractice area, writers and courts are beginning to discover that the crisis may have been more perceived than real.

Over five years ago, after extensive study of the problem, the Interagency Task Force on Product Liability concluded that the crisis may be more imagined than real, that the open-ended problem was not very significant, and that insurance rates were not necessarily responsive to actual liabilities. As stated in the Analysis to the proposed Model Uniform Product Liability Act, “The limited available data show that insurers’ apprehensions about older products may be exaggerated.” Over ninety-seven percent of product-related accidents occurred within six years of product purchase, and the problem caused by the few old-product cases that were successfully prosecuted was never adequately documented. There was little evidence to support the claim that businesses were being forced to close because of the jump in rates. Recent evidence indicates that plaintiffs are not particularly more successful in prosecuting claims than they were several years ago. Old-product claims are especially difficult for plaintiffs because the older the product, the heavier the burden on the plaintiff to overcome the natural assumption that a product in use without incident for a long period of time was not defective. As one commentator put it, a “few horror stories” drove rates up because rates are based on subjective factors.

In the great majority of cases insurance companies did not rely on actual product liability data when increasing premiums. Because product liability coverage was part of a comprehensive general liability package, the claim payout ratio for product liability injuries could not be determined, and the subjective loss estimates that form the basis of premium settings were even more subjective in the product liability area. States recently have taken this subjective factor into account when considering product liability reform. The pattern of the subjective nature of rate setting and the artificial creation of a crisis atmosphere, which has been well documented in the medical malpractice field, is emerging in the products liability area as a key cause of the highly increased premiums.

In addition, even if there were a crisis, it is far from clear that the repose statutes would alleviate it. Since most product manufacturers and product liability insurers operate on a multistate basis, anything short of a nationwide repose period would do little to alleviate the problem of open-ended liability because premiums are calculated on the experience in all relevant states. If, as has been suggested, the rates are more the result of economic fluctuations and unsuccessful investment practices than realistic liability predictions, requirements that premiums be well documented and based on actual state insurance claims would be far more useful and equitable.

As in the medical malpractice challenges, use of a middle standard of review is likely to result in overturning the product liability statutes of repose on equal protection and special legislation grounds.

2. Due Process and Guaranteed Access to the Courts

Courts have also begun to take a closer look at repose statutes when evaluating their validity on grounds of due process and guaranteed access to the courts. Product liability statutes of repose that have been declared unconstitutional were overturned primarily on this latter ground. The Florida Supreme Court, in a 4-3 decision in Battilla v. Allis Chalmers Manufacturing Co. , declared the Florida product liability statute of repose to be in violation of the state constitution. The basis for this finding was an earlier decision, Overland Construction Company v. Simmons, which invalidated the Florida repose statute for architects and builders because it was in violation of the Florida constitutional provision granting access to the courts for redress of injury. The Overland court interpreted this provision to mean that a common-law right cannot be taken away unless the legislature “has shown an overpowering public necessity for this prohibitory provision, and an absence of less onerous alternatives. ” The court found that the legislature had not expressed such a necessity, and the court could not find one in the changed circumstances which led to increased liability. In addition, the problems of reliable evidence and changes in technology were no different than those faced by all litigants, and there was not sufficient reason to protect the construction industry at the expense of the injured plaintiff. The court did not discuss less onerous alternatives, but in a product liability setting, measures such as different repose periods for different kinds of goods, rebuttable presumptions of nondefectiveness, and closer monitoring of the setting of premiums are well recognized.

In a subsequent decision the Florida court, with only one dissent, affirmed its finding of unconstitutionality of the product liability statute of repose in a delayed manifestation case. Plaintiff in Diamond v. E.A Squibb & Sons, Inc. suffered injury from DES, but the injury did not manifest itself until twenty years after her mother’s ingestion of the drug. The differences between delayed manifestation and old-product injury cases persuaded two of the judges who dissented in Battilla to change their opinions.

States that have held architect and builder repose statutes unconstitutional may also overturn their product liability statute of repose. In Bolick v. American Barmag Corp. , the North Carolina Court of Appeals recently used its state constitutional provision guaranteeing legal remedy for injury done to declare that state’s six-year product liability statute of repose unconstitutional. While recognizing that legislatures have the power to set limitation periods, the court found that this statute was not one of limitation because it cut off claims before they could accrue. This bar to the seeking of redress before the right arose violated the constitutional guarantee of remedy. The court cited the Florida and Kentucky decisions as well as other states’ decisions overturning architects’ and builders’ statutes. Unlike Florida and Kentucky, however, North Carolina had not previously overturned a repose statute.

In Thorton v. Mono Manufacturing Co. Illinois also recognized that the state’s ten-year limitation statute was not a true statute of limitations but a law extinguishing a right of action. Nevertheless, the Illinois Appellate Court did not find the statute to be in violation either of due process or the state constitution’s guarantee of a judicial remedy for every wrong. The court distinguished its constitutional provision from Florida’s by stating that in Illinois the access principle was merely a philosophy, whereas the Florida court had interpreted the provision as granting vested rights in certain remedies which could be abrogated only by showing overpowering public necessity and absence of less onerous alternatives. The Illinois statute, however, applies only to strict liability actions. Thus, plaintiff is not foreclosed from suit but merely from one theory. Indiana has also upheld its statute against attack based in part on the state constitutional provision granting legal remedy for injury.

It is not clear at this point whether many other courts are likely to adopt this due process/access-to-courts reasoning. Most of the challenges to the architects’ and builders’ repose statutes, both successful and unsuccessful, were based on equal protection clauses. More recently, however, in the medical malpractice area, several courts have overturned reform statutes on the ground that they limit access to the courts. Although these decisions have focused on the statutes’ requirement of use of medical malpractice panels, they indicate a greater willingness to review closely legislation on court access/due process grounds. Again, it is the judicial willingness to engage in close review that will be the key.

It is well recognized that constitutional provisions requiring remedy by due course of law are not blanket guarantees. Not every injury is remedied. And even for those that have been remedied in the past, legislatures may modify the law to reflect changing realities. Most states have found that rights which are not fundamental and have not vested can be rationally created or abrogated at the legislatures’ will. Changing the time period in which suit can be brought (a time period that comports with earlier statutes of limitations interpretations) to solve a perceived economic crisis while allowing the majority of suits has been found to comport with this legislative right. But the denial of rights to thousands of plaintiffs in delayed manifestation suits may cause the courts to require either an “overpowering public necessity” or a showing of less onerous alternatives.

A further distinction based on delayed manifestation injuries is possible. Due process challenges to statutes of repose primarily have been based on the argument that the legislature cannot take away a right without providing a reasonable alternative. In tort, however, there is no cause of action and therefore no vested property right upon which to base a due process challenge, until injury occurs. Therefore, an injury occurring after the running of the statutory period, such as an injury from old products, is not entitled to due process protection. Delayed manifestation suits, however, present a slightly different problem. In these cases injury often occurs within the statutory period; plaintiff is just unaware of its existence. Thus, in these cases a challenge to the statutes may rest upon a theoretical basis entirely distinct from the more traditional challenges. These cases are similar to those that involve denial of tolling of the statute for children and incompetents. Traditionally, statutes of limitations were tolled for these groups until they reached majority or regained competency in order to allow them full cognizance of their injuries and adequate time to pursue legal remedies. Denying tolling of the period until awareness of injury occurs is arguably a denial of due process because it denies reasonable access to the courts without providing adequate alternatives. The same may be said of repose statutes in delayed manifestation cases.

Two other potential due process problems exist for some statutes that do not provide for a grace period at the end of the statutory period or between the former law and the new repose period. Since the legislature may modify a vested right only if it provides a reasonable alternative, the new statutes must allow a grace period during which suits that would not be barred under the former law can be brought before being barred by the new period. Likewise, if no provision is made for persons who are injured near the end of the repose period, such as incorporating the usual two-year statute of limitations so a reasonable time is provided during which to bring suit, the statute may be violative of due process. These due process problems, while individually important, are easily remedied without changing the definite cutoff date for the vast majority of plaintiffs, and will therefore probably have little impact.


Product liability statutes of repose were passed in a “crisis” atmosphere to help swing the pendulum away from what manufacturers and insurers saw as an extremely proplaintiff position. Generally, the language of the statutes is unequivocal and would seem to indicate a legislative intent to cut off liability after a specific number of years. The legislative preference for repose in order to maintain a healthy business atmosphere is clear. If strictly interpreted, the statutes will bar thousands of suits in which injured plaintiffs, through no fault of their own, do not discover their injuries until after the statutory period has run. To be sure, barring such suits would be consistent with repose interests and a legislative desire to limit liability and thereby promote a probusiness climate. Nonetheless, such an interpretation would be inconsistent with the loss-spreading and safety-promoting policies currently fostered by courts in a wide variety of decisions. An absolute time bar provides little incentive to produce safe, long-lasting products, and may lead to practices such as dumping potentially dangerous products in states that have repose statutes and establishing long shelf lives before sale.

Courts are being asked to review these statutes, and except for those courts that give extreme deference to legislative judgment, they are not likely to find the statutes as unequivocal as had been assumed, especially when statutes are challenged in delayed manifestation cases. The climate of crisis has passed. Courts reviewing the legislation in this calmer atmosphere will probably. see less reason to protect insurance companies and businesses at the expense of plaintiffs’ substantive rights, particularly in light of the evidence indicating these groups were at least in part responsible for the “crisis” and possessed the influence to have legislation passed to protect themselves. Precedents set in cases construing repose statutes that protect health practitioners and architects and builders will likely be used by many courts to invalidate the product liability statutes on constitutional grounds. Two state courts have already done so. Other jurisdictions may take a less sweeping approach by applying time extensions such as tolling or by upholding the repose statutes but finding that they apply only to old-product injury cases.

In our litigious society, courts are increasingly asked to provide antidotes to modem social problems. Delayed manifestation injuries caused by technological innovation are prime examples of such problems. Little has been done so far by legislatures to deal comprehensively with these technological effects. Until such responsible action is taken, courts are likely to review legislation closely. Many preferable legislative responses could have been made: closer regulation of rate setting, rebuttable presumptions of non defectiveness, different periods of repose for different types of goods, and so on. Since legislatures did not choose one of these less restrictive alternatives, many courts are likely to ameliorate the statutes’ harsh effects by opting to protect the rights of the delayed manifestation plaintiffs.

Terry Morehead Dworkin, 1982.

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