Day on Torts

No exception to products liability statute of repose for latent disease or fraudulent concealment.

Where plaintiff filed a products liability claim based on a hip replacement device she had received, but her hip replacement occurred more than ten years before her suit was filed, dismissal based on the statute of repose was affirmed.

In Jones v. Smith & Nephew Inc., No. W2021-00426-COA-R3-CV, 2022 WL 767709 (Tenn. Ct. App. Mar. 14, 2022), plaintiff had a hip replacement in January 2009 in which a metal-on-metal device was implanted. This device caused plaintiff significant issues, which resulted in her having to have a second surgery to replace the original replacement device in November 2019.

Plaintiff filed this products liability suit in November 2020, asserting that defendant, who manufactured, marketed, and sold the original replacement device, “actively and intentionally misled the public, medical community, health care providers, and patients into believing these products were safe and effective.” In an amended complaint, plaintiff asserted that the statute of repose found in the Tennessee Products Liability Act (TPLA) would not bar her action because “the injuries suffered by [plaintiff] often take considerably longer than ten years to manifest themselves, in a fashion similar to injuries from exposure to asbestos.” Defendant filed a motion to dismiss based on the statute of repose, which the trial court granted, and the Court of Appeals affirmed.

Plaintiff did not dispute that the TPLA governed this action, making the only issue on appeal whether the case was time-barred by the statute of repose. Tenn. Code Ann. § 29-28-103(a) requires that a products liability case “be brought within ten (10) years from the date on which the product was first purchased for use or consumption.” Here, that ten-year time period began to run on the date of plaintiff’s hip replacement in January 2009, yet this case was not filed until 2020, well beyond the ten-year mark.

While the TPLA does contain three exceptions, those exceptions are specifically listed in the statute and apply to plaintiffs who were injured as minors, injuries caused by asbestos exposure, and injuries caused by silicone breast implants. (internal citation omitted). Acknowledging that she did not fall within those exceptions, plaintiff asked the Court of Appeals “to create two new exceptions,” one for “latent diseases” and one for “cases where defendants fraudulently conceal the defective nature of their products.” Noting that there was no Tennessee authority supporting the recognition of these new exceptions, the Court wrote that its job was to “apply the law as the legislature has written it.”

The Court explained:

The language in the TPLA’s statute of repose is clear[.] … Likewise, the statutory language regarding exceptions to the statute of repose is equally clear. … [Plaintiff’s] argument asks us to do what we cannot—expand Tennessee Code Annotated section 29-28-103(b) to include new exceptions for “latent” or “creeping” diseases and/or a defendant’s fraudulent concealment. …This Court cannot expand/rewrite the statute to create a general latent disease exception or a fraudulent concealment exception to the TPLA’s statute of repose.

Because no exception applied and no new exception could be created, dismissal based on the statute of repose was affirmed.

The statute of repose for products liability cases is a hard line with very limited exceptions. As this case reminds us, this is one scenario in which alleged fraudulent concealment by the defendant will not change the result of the case.

This opinion was released four months after oral arguments in this case.

Note:  Chapter 90, Section 16 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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