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"Anticipated Life" And The Statute Of Repose

By James M. Beck and Mark Herrmann

For reasons too numerous to mention, neither of us can comment on the recent decision in Montgomery v. Wyeth, No. 1:05-CV-323, slip op. (E.D. Tenn. Mar. 19, 2008) (copy here).

But you should know about that decision, so we're describing it (very briefly) here, stripped of any commentary.

Plaintiff Angela Montgomery pleaded that she ingested the diet drug Pondimin in 1996 and 1997 in the state of Tennessee. Allegedly as a result of ingesting Pondimin, she developed Primary Pulmonary Hypertension in 2005. Later in 2005, she filed a product liability action against Pondimin's manufacturer.

Tennessee's product liability statute includes a statute of repose that provides, among other things, that a complaint must be filed "within one (1) year after the expiration of the anticipated life of the product." Tenn. Code Ann. Sec. 29-28-103. The "anticipated life of the product" is the "expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption." Id. at Sec. 29-28-102.

Defendant stopped manufacturing Pondimin in September 1997. The expiration dates on the packaging (which were required by law) were three years from the date of manufacture, or no later than September 2000. Montgomery, slip op. at 4. The statute of repose therefore expired no later than September 2001, several years before Montgomery was allegedly diagnosed with PPH.

Statutes of repose are designed to set an absolute time bar on lawsuits. The Tennessee Supreme Court has held that when an "injury occurs outside the [repose] period, no substantive action ever accrues, and a claimant's actions are . . . barred." Penley v. Honda Motor Co., 31 S.W.3d 181, 184 (Tenn. 2000). The "anticipated life" provision operated the same way: "[W]hen a plaintiff does not discover (and could not have reasonably discovered) her injury until after the statute of repose period, the cause of action never accrues." Montgomery, slip op. at 7. Montgomery's claims were therefore barred by the statute of repose.

The court considered, and rejected, three arguments proferred by Montgomery to avoid this result. First, the earlier class action settlement in the Diet Drug litigation did not include PPH claims and so could not have affected Montgomery's claims. Id. at 8-12. Second, the defendant had pleaded the statute of repose in its Answer and so preserved the defense. Moreover, a statute of repose, unlike a statute of limitations, is substantive and probably cannot be waived. Id. at 12-13. Finally, the court held that Tennessee law applied to plaintiff's claims; she could not avoid summary judgment by invoking Georgia law.

We know that we promised at the top that we'd provide no commentary on this case.

But we can't resist (you'll be startled to hear).

So far as we're aware, and as the Montgomery decision says, the "anticipated life" provision in the Tennessee statute of repose is unique. If anyone ever says that it's okay to paint with broad strokes in litigation, and that only crazy compulsives fret the details, the Montgomery decision should be "Exhibit A" in your response to that person. It's extraordinarily unlikely that anyone -- even a product liability lawyer practicing regularly in Tennessee -- would have been aware, off the top of his head, of the "anticipated life" provision. This case shows the need to pay close attention to, and do meticulous research into, local state law. Complete defenses sometimes appear in the most unlikely places.

Full post as published by Drug and Device Law on March 31, 2008 (boomark / email).