Defective Drug Litigation

What is the Difference between a Statute of Limitations and a Statute of Repose?

By David Goguen, J.D., University of San Francisco School of Law
If you're thinking about filing any kind of civil lawsuit -- including a claim over a defective or dangerous drug -- it's important to understand how your state's statutory time limits could affect your right to get compensation for any harm you've suffered.

Statutes of limitations and statutes of repose are state laws that set time limits on the right to file a civil lawsuit (including claims arising from defective drugs and other dangerous products), but there are a few key differences between these two kinds of laws.

What is a Statute of Limitations?

A statute of limitations is a state law that puts a time limit on a potential plaintiff’s right to file a civil lawsuit after suffering some kind of harm. These time limits are usually expressed in years, and the deadlines set by these laws vary depending on the kind of case being filed.

In almost every state, there is a specific statute of limitations that applies to "tort" or personal injury cases where one person's carelessness or intentional action causes harm to someone else. And that same personal injury lawsuit deadline will typically apply to product defect and defective drug (or product liability) lawsuits. For example, the same statute of limitations deadline governs standard personal injury lawsuits and product liability lawsuits in:

  • California (where the time limit is 2 years)
  • Illinois (2 years)
  • Massachusetts (3 years)
  • New York (3 years)
  • Ohio (2 years), and
  • Texas (2 years).

If you're in a car accident, you slip and fall, or you get bitten by a dog, you know about your injury right away, and it's very likely you know -- or can fairly easily learn -- who is legally responsible for it. But that's not the case with every kind of case and every situation. So many states apply a so-called "discovery" rule to the personal injury statute of limitations, which means the running of the statute of limitations "clock" is essentially paused if the potential plaintiff did not actually discover that he or she was harmed -- and could not reasonably have made that discovery -- right away. In those states, the "clock" doesn't start running until the harm is actually (or should have reasonably been) discovered. Sometimes, this "discovery" rule works in conjunction with a statute of repose (more on this in the next section).

What is a Statute of Repose?

While a statute of limitations sets a lawsuit-filing time limit based on when the potential plaintiff suffered harm, a statute of repose sets a deadline based on the mere passage of time or the occurrence of a certain event that doesn't itself cause harm or give rise to a potential lawsuit.

Statutes of repose most often apply to specific kinds of injury-related cases. For example, statutes of repose are common in:

  • Product liability and product defect cases, where a lawsuit alleging injuries related to the product might be barred if a certain amount of time has passed after sale of the product, or the product's first use. (For example, in Georgia, no product liability lawsuit can be filed if more than 10 years have passed since the product was first sold for use or consumption. Georgia Code section 51-1-11.)
  • Construction defect lawsuits and similar kinds of claims over property-related damage. Here, the time period is typically measured starting after completion of the construction project or the sale of the property.
  • Medical malpractice lawsuits, where a patient might not always know right away that he or she suffered harm because of a medical error, and/or that a health care provider might be responsible for that harm. (In medical malpractice lawsuits, a statute of repose usually acts in conjunction with the "discovery" rule mentioned above, and sets a broader, more strictly-enforced filing deadline that even encompasses situations where the patient could not have reasonably discovered that he or she was harmed and/or had a right to file a lawsuit.)

If you think you might have a viable defective drug or product liability lawsuit, and you're worried about whether your state's statute of limitations or statute of repose might bar your case, it's time to talk to an experienced product liability lawyer to make sure your rights are protected.

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