When does the statute of repose clock start ticking on a product liability claim involving long-term repeat use of many individually purchased units of a product? According to the Georgia Supreme Court’s decision in Burroughs v. Strength of Nature Global, LLC, __ S.E.2d __, 2025 WL 2918923 (Ga. Oct. 15, 2025), the short answer is that the statute of repose starts anew for each individual unit. But, as Burroughs itself illustrates, that answer creates serious problems that may require the state’s legislature to intervene.
The Burroughs plaintiff alleged she developed uterine fibroids as a result of using chemical hair relaxers manufactured by the defendants repeatedly over nearly two decades. Specifically, she claimed she began using the products in 1995 at the age of six and used them six to eight times per year through 2014 (with one brief hiatus). She developed uterine fibroids in 2018 and filed suit in 2022. The defendants moved to dismiss the plaintiff’s strict liability claims on the basis that they were barred by the statute of repose. Georgia’s product liability statute of repose requires actions to be commenced within 10 years of “the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” OCGA § 51-1-11(b)(2) (emphasis added). The trial court denied defendants’ motion. The court of appeals reversed, holding the plaintiff’s initial purchase of the first unit of the defendants’ products was a “first sale” that triggered the statute of repose and barred her filing an action more than 10 years later.
The Georgia Supreme Court reversed again and sided with the trial court. It began — and essentially ended — with its prior holding in Campbell v. Altec Industries, Inc., 707 S.E.2d 48 (Ga. 2011), which it described as holding that “the word ‘first’ specifies that it must be the sale of the product ‘as new’ to an end user, rather than a resale.” Because the court had already determined the meaning of the word “first” as used in the statute, the court held that it could not “simultaneously carry a second, entirely different meaning and purpose, like a linguistic chameleon that changes its meaning and purpose on the fly depending on the facts of the case.” Thus, the court was not swayed by the “surface appeal” of the court of appeals’ reasoning. Although the court agreed that any product liability claims based on units purchased more than 10 years before the action was filed were barred by the statute of repose, it held that the plaintiff’s claims could proceed because her last purchase of the products occurred in 2014 — within 10 years of filing suit in 2022.
As the court appeared to appreciate, its strictly textual reading of the statute raises issues that may be difficult to address in practice. Chiefly, as the court noted, it remains to be seen “whether a defendant manufacturer could ultimately prevail on an affirmative defense theory that the statute of repose completely bars a strict-liability claim even as to units sold to her within the statute of repose because the plaintiff’s injury would not have occurred but for the causative contribution of units sold to her outside of the statute of repose.” Burroughs itself presents that still-unresolved issue in the extreme, as the plaintiff allegedly used the product at an essentially constant rate for almost two decades and faces a statute of repose defense for all but the final two years. It seems unlikely that a trier of fact would find that the first 17 years of her use were neither necessary nor sufficient to cause her fibroids — that is, that the units of product she used over the final two years were a but-for cause of her claimed injury. The court — and the plaintiff — noted that proving this would be a “tricky undertaking.” Indeed, if Burroughs had been brought in federal court and judged by the Twombly/Iqbal pleading standard rather than what the court itself described as “Georgia’s liberal notice pleading standard,” one wonders if such a nuanced causation allegation would even be deemed plausible so as to survive a pleadings motion.
At the end of the day, the purpose of Georgia’s statute of repose is to “address problems generated by open-ended liability of manufacturers [and] eliminate stale claims and stabilize products liability underwriting.” Johnson v. Ford Co., 637 S.E.2d 202 (Ga. Ct. App. 2006). If a plaintiff may allege 19 years of continual product usage and premise a valid claim on just the final two years despite the obvious causation issues, then the statute of repose largely fails to offer the protection it was enacted to provide. As the Burroughs court noted, “[a] legislative solution may well be better than any answer a court could come up with given the current statute.”
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