As products defense counsel, a nearly "ideal" litigation path—other than one that never begins—is having the case against your client dismissed early. One avenue for early dismissal is establishing that the case is time-barred. There are important considerations in assessing whether a products action is barred that go beyond statutes of limitations (SOL).
Generally, a claim begins to accrue at the time of "injury." SOLs vary depending on whether the action is for personal injury, property damage, breach of contract or warranty, negligence, strict liability, etc. Therefore, ask yourself: What is the alleged injury? What is the date of injury? Does the plaintiff allege a date of injury and/or a date of product use?
SOL and Borrowing Statutes
Assess which state's (or states') SOL applies and consider: Where did the alleged injury occur? Where did the plaintiff use the product? What is that state's SOL? Where did the plaintiff file? Does the state of filing have a borrowing statute?
Many states have borrowing statutes, which generally provide that when an injury occurs outside of the jurisdiction in which the complaint was filed, the shorter limitations period of either the state of injury or the state of filing applies. Generally, borrowing statutes are meant to protect defendants from the plaintiffs' forum shopping. See In re TMI, 89 F.3d 1106, 1116 (3d Cir. 1996) ("Pennsylvania's borrowing statute unequivocally [evinces] the legislative intent to prevent a plaintiff who sues in Pennsylvania from obtaining greater rights than those available in the state where the cause of action arose.") (internal citation omitted); Machala v. Boehringer Ingelheim Pharm., Inc., 2017 WL 2814728, at *4 (Del. Super. Ct. June 29, 2017) ("[T]he [Delaware] Borrowing Statute was designed for the very specific purpose of preventing a non-resident plaintiff from forum shopping[.]"). Thus, borrowing statutes can be a defense attorney's best friend. See, e.g., Machala, 2017 WL 2814728, at *3, 6 (granting defendants' motion to dismiss products complaint as time-barred holding Delaware's two-year SOL applied over District of Columbia's three year SOL under Delaware's unambiguous borrowing statute).
Even if the complaint alleges a date of injury outside the SOL, the SOL may nevertheless be tolled under a tolling doctrine. It is important to know which party has the burden of demonstrating tolling. For instance, in Delaware, if the complaint, on its face, asserts a claim that is outside the SOL, the burden is on the plaintiff to demonstrate a tolling theory applies. See Machala, 2017 WL 2814728, at *6.
Many states recognize various tolling theories—most commonly the discovery rule and periods of fraudulent concealment. Fraudulent concealment tolls the SOL where a plaintiff's action has been obscured by defendant's affirmative fraudulent conduct. It is not applicable where the plaintiff remains ignorant to her injury. While each state varies on what a plaintiff must plead under fraudulent concealment, states often comport with Federal Rule of Civil Procedure 9(b), requiring fraud to be pled with particularity. While states differ on what is required under the discovery rule, at its essence, it provides that the SOL does not begin to run until a plaintiff knows, or through the exercise of due diligence, should know of her injury, its probable cause, and/or the product defect.
Ask yourself: What tolling theories does the state recognize? Does the discovery rule or fraudulent concealment apply? Did the plaintiff exercise due diligence? Was the plaintiff on inquiry notice? Was the injury "inherently unknowable" or a "latent" disease? Has the plaintiff pled facts to toll the SOL?
Statutes of Repose
Always consider statutes of repose. Unlike SOL, statutes of repose begin to run at some time other than the injury and, like borrowing statutes, generally operate in a defendant's favor. In theory, a statute of repose could bar a claim before a SOL even begins to run. Unlike SOL, statutes of repose often apply without regard for tolling. See Montgomery v. Wyeth, 580 F.3d 455, 467 (6th Cir. 2009) (affirming Eastern District of Tennessee's holding that the plaintiff's claims were barred under Tennessee's statute of repose, which requires claims to be brought within whichever is shorter of ten years from the date of first purchase or within one year after expiration of the anticipated life of the product); contra Fla. Stat. §95.031(d) (providing for tolling under the statute of repose).
It is imperative for products counsel to contemplate early in the litigation whether there are grounds to move for dismissal based on timeliness. In so assessing, counsel should consider not only the SOL, but also borrowing statutes, tolling doctrines, and statutes of repose.