Statutes of repose serve as substantive outer limits on product liability claims after a certain time period following the product’s sale or use, potentially providing a complete defense in some jurisdictions and a rebuttable presumption of non-defectiveness in others. But for a statute of repose to provide a viable defense, it must apply to the case at hand and survive constitutional scrutiny. A recent appellate decision from Washington State provides good news on both fronts for defendants facing claims brought under the Washington Product Liability Act (WPLA).
In Erickson v. Pharmacia LLC, – P.3d –, 2024 WL 1905209 (Wash. Ct. App. May 1, 2024), three former teachers alleged injury from chemical exposure in middle school buildings built in the 1960s. In 2018, the teachers filed product liability claims under the WPLA alleging that the chemicals at issue were not reasonably safe as designed and led to various adverse medical effects. Because the plaintiffs had filed under the WPLA and the defendants did not contest that selection, the WPLA provided the substantive law governing the claims. When the defendants moved for summary judgment on grounds that the claims were time-barred under the statute of repose contained in the WPLA, the plaintiffs argued that Missouri law (which has no statute of repose for product liability claims) should apply. The plaintiffs pointed to the fact that the chemicals were manufactured in Missouri and the manufacturer also had its principal place of business in Missouri. The trial court agreed, and the case proceeded to a nine-figure jury verdict in the plaintiffs’ favor.
On appeal, the defendant argued inter alia that the trial court erred by conducting a separate choice of law analysis concerning the statute of repose because the parties had already agreed that the WPLA applied. The plaintiffs countered by citing several product liability cases in which courts had conducted a choice of law analysis to assess whether the WPLA statute of repose applied; however, in each of those cases, there was a larger question as to whether Washington’s products liability laws applied. None of the plaintiffs’ precedent addressed whether, in a case in which it was undisputed that the WPLA governed the substantive claims, it was proper to separately address whether the WPLA’s statute of repose applies. The appellate court reversed upon review of the statute’s history and legislative intent, holding that the “WPLA’s statute of repose is inextricably linked” to WPLA causes of action such that “[a] plaintiff who cannot satisfy the WPLA statute of repose does not have a WPLA claim.” The court observed that treating statutes of repose as intrinsic to the underlying liability claim is consistent with the Restatement (Third) of Conflict of Laws § 6.11, which sets forth particular choice-of-law factors tailored to products liability torts. Supporting a part-in-parcel approach, bundling the statute of repose with the underlying liability claim, the Restatement drafters comment that “[a] statute of repose relates to liability, and choice of law with respect to such statutes is performed under this section.”
The court further held that the WPLA’s claim-defining statute of repose is constitutional, distinguishing the Washington Supreme Court’s holding in Bennett v. United States, 539 P.3d 361 (Wash. 2023), that the state’s medical malpractice statute of repose was unconstitutional. Both statutes of repose contained general statements of legislative purpose. But unlike the medical malpractice statute’s cursory legislative reasoning, there was evidence that the WPLA’s statute of repose in fact served its purpose to protect product sellers from the high cost of product liability insurance. Washington’s State Senate Select Committee on Tort and Product Liability Reform had conducted research and provided specific explanations for the ways its research drove the statutory language balancing competing interests of consumers and manufacturers. This data-driven nexus rendered the provision constitutional where the medical malpractice statute of repose fell short.
The plaintiffs’ attempt to avail themselves of what they saw as favorable elements of the WPLA while avoiding potential affirmative defenses through a piecemeal choice of law analysis failed in Erickson. Defendants facing product liability claims under the WPLA may confidently continue to advance the WPLA’s statute of repose as a defense.
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