IT'S ABOUT TIME: THE LONG OVERDUE DEMISE OF STATUTES OF REPOSE IN LATENT TOXIC TORT LITIGATION.

AuthorEggert, Jean Macchiaroli

ABSTRACT

Latent toxic illness typically does not become manifest until months, years, or decades after a person's exposure to a toxic substance. The timing, extent, and characteristics of its physical manifestation are unpredictable and vary among individuals. Similarly, property damages associated with environmental contamination may not be detected for years, and the diseases caused by the contamination could take even longer to manifest. Accordingly, toxic harms present unique challenges for plaintiffs confronted with time limitations on their actions. Statutes of repose operate in conjunction with statutes of limitations to provide defendants with maximum protection from stale claims. Unlike statutes of limitations, however, they run from an event external to the plaintiff's injury, such as the sale of a product or the completion of an improvement to real property. Even if the statute of limitations has not yet expired, the plaintiff's claim may nevertheless be barred if it is brought after the repose period. Plaintiffs whose latent illnesses take longer to become detectable are likely to be time-barred; conversely, those who get sick sooner, i.e. before the repose period expires, may bring their claims. This Article examines the ways in which statutes of repose--and their narrow judicial interpretations--negatively impact latent-illness claimants. The Article demonstrates that to date any attempts by state legislatures to remedy this situation have fallen short. This Article concludes that the best solution is the simplest one--an absolute statutory exclusion for claims based on latent injuries.

CONTENTS INTRODUCTION I. AN OVERVIEW OF THE PROBLEM II. THE ERRATIC ROAD TO REFORM A. Early Constitutional Challenges B. Legislative Revisions III. A SIMPLE SOLUTION WITHIN REACH A. The Need for a Broad Latent Illness Exclusion B. Seeking a Solution C. A Simpler, Fairer, and More Predictable Model CONCLUSION INTRODUCTION

Plaintiffs with latent toxic injury claims often encounter substantive and procedural doctrines that bar recovery even when the merits of their claims seem to demand a remedy. Latent toxic illness is insidious, and the timing, extent, and characteristics of its physical manifestation are unpredictable. Thus, toxic injuries provide the states with unique challenges in formulating time limitations for bringing tort actions--through statutes of limitations and statutes of repose--while at the same time accomplishing the policy goals underlying the time limits. Toxic injury typically does not become manifest until a date significantly later than the time of the plaintiff's exposure to the toxic substance. For example, asbestos-related illness may not manifest until years or decades after the plaintiffs last exposure. (1) Similarly, property damages associated with environmental contamination may not be detected for years, and the diseases caused by the contamination could take even longer to manifest. (2)

Statutes of limitations are ubiquitous, and their impact is well understood. Although nearly all the states and the District of Columbia have some form of tort statute of repose, these statutes, which may impose an absolute bar on some actions, are less conspicuous. Their impact on certain claims is either poorly understood or simply ignored by state legislatures. Statutes of repose operate in conjunction with, but in a manner different from, statutes of limitations. While personal injury statutes of limitations begin to run at the time the action accrues--typically when the injury to the plaintiff occurs--statutes of repose run from a designated point in time external to the plaintiff, such as the manufacture and sale of a product. (3) The state legislature defines in the first instance the act that triggers the running of the repose period. This act may have occurred years, or even decades, before the action accrues. The most common statutes of repose run for a fixed period of time from the sale of a product (4) or from the completion of an improvement to real property. (5) Both types apply directly to latent toxic injury claims, the former to toxic product claims and the latter to environmental contamination claims and their associated personal injuries. When a statute of repose applies to the case in addition to a statute of limitations, the plaintiff's action must be timely under both statutes. Thus, a plaintiff may be time-barred by the statute of repose even if the claim has not yet accrued under the statute of limitations. (6)

In the 1970s and 1980s, the states began to recognize the unfairness of applying a strict statute of limitations, which typically ran from the last exposure to the toxic substance, in latent illness cases, leading to revision of their arbitrary rules to accommodate plaintiffs whose injuries manifested much later. The impetus for many of these statutory changes was the mass litigation arising from exposures to diethylstilbestrol ("DES"), the prescription drug given to pregnant women from the 1940s to the 1970s to prevent miscarriages. (7) Latent injuries to the offspring of women who ingested DES during pregnancy included signature cancers and other reproductive injuries that typically manifested years after birth and into adulthood, well after both the initial exposure to DES in utero and the birth of the offspring. (8) When these illnesses manifested they were long past the time allowed by the relevant statute of limitations for commencing a personal injury action. For reasons of fairness, the states eventually embraced "discovery" limitations periods (9) for DES claims and other claims based upon latent toxic injuries, pursuant to which the action is deemed to have accrued when the plaintiff discovered or reasonably should have discovered the injury. (10)

Although the states have uniformly embraced discovery statutes of limitations for latent disease claims, many states have remained intransigent in enforcing their repose statutes. Courts have routinely applied statutes of repose strictly and arbitrarily, with harsh results for plaintiffs. For example, in In re Depakote: Alexander v. Abbott Laboratories, Inc., (11) the court conducted a choice of law analysis and concluded that the Indiana product liability statute of repose barred the minor plaintiffs' claims for birth defects arising from in utero exposures to the defendant's prescription drug, Depakote, ingested by their mothers during pregnancy. (12) Although Illinois--the other state with interests in the litigation--also had a statute of repose, it contained a tolling provision for minors, which would have benefited the plaintiffs. (13) The court was not persuaded, however, by the plaintiffs' argument that Illinois law should apply because of its policy interest in protecting minors from harsh results and ruled instead that the Indiana bar should apply. (14)

Even in cases in which the relevant discovery statute of limitations is sufficiently broad to accommodate the plaintiff's claims--and where the equities of the case demand a remedy--the statute of repose has often barred the claim. Consider, hypothetically, a state that has a discovery statute of limitations for personal injuries that runs for three years from the time that the plaintiff knows of the injury and also knows of its likely cause. The same jurisdiction has a statute of repose for product liability claims that runs for ten years from the date on which the defendant sold the product to the initial consumer. Assume the plaintiff brings a product liability personal injury claim against the defendant product seller less than three years after her undisputed diagnosis and knowledge of causal connection to the defendant's product. But the claim happens to be commenced twenty years from the time the product was first sold because the plaintiff's illness took many years to manifest. Clearly the plaintiff would not be barred by the statute of limitations, but, absent an exception, the claim is absolutely barred by the ten-year statute of repose.

The states are not unaware of this problem, and some have struggled with the inherent unfairness of applying statutes of repose to latent injury claims. Although the states have uniformly embraced the concept of discovery statutes of limitations to address this problem, those states with statutes of repose have largely done little to fully alleviate the disability that repose places on latent injury plaintiffs who are unfortunate enough to have their injuries manifest after the expiration of the repose period. Several state courts have flatly rejected the harsh and arbitrary bar of statutes of repose on state constitutional grounds. (15) On the other end of the spectrum are the states that continue to tolerate the inequities of their repose statutes in the service of absolute protection of certain business interests and activities. In between these extremes are the states that have undertaken ad hoc efforts, resulting in a hodge-podge of insufficient state rules enacted incrementally and favoring certain toxic tort plaintiffs over others. Where a statute of repose applies to some or all latent toxic injury cases, the difference between a viable claim and one that is time-barred may simply be the fortuity of one plaintiff's illness manifesting a day before the illness of another plaintiff.

With these considerations in mind, this Article argues that latent toxic injury cases have unique characteristics that make it fundamentally unfair to apply statutes of repose in most cases. These considerations substantially outweigh any need for shielding defendants from stale claims and unexpected liabilities. Accordingly, states determined to retain their statutes of repose for at least some claims should enact an absolute exclusion for latent illness claims. Part I of this Article provides a brief overview of the types of statutes of repose that appear in latent toxic injury litigation, demonstrating the...

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