* This article relates to personal injury limitations; there may be different limitations periods for other product liability claims (e.g., those that sound in warranty or fraud).
Statutes of limitations and statutes of repose both set specific time limitations on product liability claims. However, they operate differently.
The statute of limitations governs the time within which a lawsuit may be filed after the cause of action accrues. The limitations period varies by state, ranging from one to six years. Most states recognize the discovery rule, which can toll accrual of a claim and often requires a fact-intensive inquiry. Only five states do not recognize the discovery rule.
Although less common, statutes of repose tend to operate from a date that is not related to when a plaintiff’s claim accrues. Instead, a statute of repose is triggered by the manufacturer’s pertinent action, for example, the date of sale or delivery of the drug or device. Statutes of repose generally are not subject to a discovery rule. That means that a claim could potentially be barred by a repose period before a plaintiff suffers injury or becomes aware of an alleged product defect or breach of duty. Where there is an applicable statute of repose, it has the potential to provide for a quick dismissal of a plaintiff’s untimely claims.
Alabama
Statute of Limitations: 2 years. Ala. Code § 6-2-38(l). Alabama does not recognize the discovery rule. Rather, the limitations period “begins to run ‘when there has occurred a manifest, present injury,’ which means there are ‘observable signs or symptoms . . . the existence of which is medically identifiable.’” Newton v. Ethicon, Inc., No. 3:20-cv-00021-ALB-JTA, 2020 WL 1802927 (M.D. Ala., Apr. 8, 2020) (quoting Griffin v. Unocal Corp., 990 So. 2d 291, 310 (Ala. 2008)).
Statute of Repose: None. The Supreme Court held that a 10-year statute of repose was unconstitutional in Lankford v. Sullivan, 416 So. 2d 996 (1982).
Alaska
Statute of Limitations: 2 years. Alaska Stat. § 09.10.070(a). Alaska recognizes the discovery rule, which provides that “a claim accrues when the plaintiff has information which is sufficient to alert a reasonable person to begin an inquiry to protect his rights.” Makin v. Pfizer, Inc., 144 F. App’x 648, 649 (9th Cir. 2005) (cleaned up).
Statute of Repose: None. See Alaska Stat. § 09.10.055(b)(1)(e).
Arizona
Statute of Limitations: 2 years. Ariz. Rev. Stat. §§ 12-551, 12-542. Arizona applies the discovery rule, meaning that the cause of action does not accrue “until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause.” Roulston v. Foree Tire Co., Inc., No. 88–2691, 1990 WL 35216, at *3 (9th Cir. Mar. 29, 1990). The plaintiff must know that the product was somehow causally connected to his injuries. Murrell v. Wyeth, Inc., No. CV-13-0290-PHX-DGC, 2013 WL 1882193, at *3 (D. Ariz. May 3, 2013). This connection must be such “that a reasonable person would be on notice to investigate whether the injury might result from fault.” Id.
Statute of Repose: None. The Supreme Court held that the statute of repose was unconstitutional in Hazine v. Montgomery Elevator Co., 861 P. 2d 625 (Ariz. 1993).
Arkansas
Statute of Limitations: 3 Years. Ark. Code Ann. § 16-116-203. Arkansas applies the discovery rule, such that a claim does not accrue until the plaintiff becomes aware—or, by reasonable diligence, should have become aware—of his condition, including the injury and its probable causal connection to the product. Uhiren v. Bristol-Myers Squibb Co., 346 F.3d 824 (8th Cir. 2003).
Statute of Repose: None. See Brown v. Overhead Door Corp., 843 F. Supp. 482, 490 (W.D. Ark. 1994).
California
Statute of Limitations: 2 years. Cal. Civ. Proc. Code § 340.8. California applies the discovery rule, delaying accrual until the plaintiff “has, or should have inquiry notice of the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797 (2005); see Bekins v. AstraZeneca Pharm. LP, 739 F. App’x 884, 886 (9th Cir. 2018); See, e.g., Villarreal v. Am. Med. Sys., Inc., No. CV201641PSGPLAX, 2020 WL 4390372 (C.D. Cal. May 6, 2020) (noting that, in pelvic mesh cases, the statute of limitations begins on the date of a second corrective procedure occurring shortly after the initial mesh procedure).
Statute of Repose: None. See McCann v. Foster Wheeler LLC, 225 P.3d 516, 529 (Cal. 2010) (stating that the statute of repose is not applicable to personal injury actions).
Colorado
Statute of Limitations: 2 years. Colo. Rev. Stat. §§ 13-80-106(1), 13-80-102. Colorado applies the discovery rule, which triggers the limitations period “on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” Colo. Rev. Stat. § 13-80-108(1).
Statute of Repose: There is a presumption of non-defectiveness 10 years after the product is first sold for use or consumption. Colo. Rev. Stat. § 13-21-403(3).
Connecticut
Statute of Limitations: 3 years. Conn. Gen. Stat. § 52-577a(a). Connecticut applies the discovery rule; therefore, a cause of action does not accrue until the injury is “discovered or in the exercise of reasonable care should have been discovered.” Id.
Statute of Repose: 10 years. Conn. Gen. Stat. § 52-577a.
Delaware
Statute of Limitations: 2 years. 10 Del. Code Ann. §§ 8119, 8107. Delaware applies the discovery rule, thereby tolling the statute of limitations until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, her injury. Burrell v. Astrazeneca LP, No. CIV.A. 07C01412(SER), 2010 WL 3706584, at *5–6 (Del. Super. Ct. Sept. 20, 2010) (distinguishing this “inquiry notice” standard from the “actual notice” standard).
Statute of Repose: None
District of Columbia (D.C.)
Statute of Limitations: 3 years. D.C. Code § 12–301.Washington, D.C. courts’ application of the discovery rule delays a claim from accruing until the plaintiff has knowledge, or by the exercise of reasonable diligence should have knowledge, of the existence of his injury, the injury’s cause in fact, and some evidence of wrongdoing. Kubicki v. Medtronic, Inc., 293 F. Supp. 3d 129, 158 (D.D.C. 2018) (further stating that an injured plaintiff has an obligation to investigate the possibility of a claim).
Statute of Repose: None.
Florida
Statute of Limitations: 4 years. Fla. Stat. § 95.11(3). Florida applies the discovery rule, thereby triggering accrual on “the date that the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. § 95.031(2)(b).
Statute of Repose: 12 years after delivery of the drug/device, with exceptions for latent disease or injury and fraudulent concealment. Fla. Stat. § 95.031(2)(b).
Georgia
Statute of Limitations: 2 years. Ga. Code Ann. § 9-3-33. Georgia applies the discovery rule only in cases involving a “continuing tort,” thereby delaying accrual until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both that he has been injured and that the defendant may have caused his injury. See Bell v. C.B. Fleet Holding Co., Inc., No. 1:07-CV-84-GET, 2008 WL 11336406, at *3 (N.D. Ga. Aug. 15, 2008) (citing King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (1981)).
Statute of Repose: 10 years “from the date of first sale for use or consumption of the drug/device.” Ga. Code Ann. § 51-1-11(b)(2).
Hawaii
Statute of Limitations: 2 years. Haw. Rev. Stat. § 657-7. Hawaii applies the discovery rule, so the limitations period begins to run on the date the plaintiff knew or should have known that the defendant’s action caused her injury. See Yamaguchi v. Queen’s Medical Center, 65 Haw. 84, 89–91 (1982); Thomas v. Colonial Penn Ins. Co., 26 F. App’x 687, 689 (9th Cir. 2002).
Statute of Repose: None.
Idaho
Statute of Limitations: 2 years. Idaho Code §§ 6-1403(3), 5-219. Idaho does not recognize the discovery rule; rather, the statute dictates that an action accrues when the act or omission complained of occurs. Idaho Code § 5-219(4). The Idaho Supreme Court has further stated that a negligence claim does not accrue until “some damage” has occurred because damage is an element of a plaintiff’s claim. See Cosgrove v. Merrell Dow Pharm., Inc., 117 Idaho 470, 475 (1989); Reynolds v. Trout Jones Gledhill Fuhrman, P.A., 154 Idaho 21, 24 (2013).
Statute of Repose: An action may not be commenced after the expiration of the product’s “useful safe life.” Idaho Code § 6-1403. There is a rebuttable presumption that injury “caused more than ten (10) years after time of delivery” occurred after product’s safe life. Id.
Illinois
Statute of Limitations: 2 years. 735 Ill. Comp. Stat. § 5/13-213. Illinois applies the discovery rule, which postpones the commencement of the limitations period until the plaintiff knows, or through exercise of reasonable diligence should have known, that she was injured and that her injury was “wrongfully caused.” Cochran v. Smith & Nephew, Inc., 260 F. Supp. 3d 979, 983 (C.D. Ill. 2017); See Dahms v. Coloplast Corp., No. 19 C 6349, 2020 WL 5593279 (N.D. Ill. Sept. 18, 2020).
Statute of Repose: A cause of action must be commenced within the shorter of 10 years from the date of first sale, delivery, or lease to the initial consumer, or other non-seller; or 12 years from the date of any first sale, lease, or delivery of possession by a seller. 735 Ill. Comp. Stat. Ann. 5/13-213(b). Section 213(d) imposes an 8-year bar to strict liability personal injury actions, running from the date of injury. 753 Ill. Comp. Stat. Ann. 5/13-213(d); see Stark v. Johnson & Johnson, No. 18 CV 06609, 2020 WL 1914767, at *5 (N.D. Ill. Apr. 20, 2020).
Indiana
Statute of Limitations: 2 years. Ind. Code §§ 34-11-2-4, 34-20-3-1. Indiana’s application of the discovery rule means that a claim accrues when the plaintiff discovers, or in the exercise of ordinary diligence could have discovered...
