Plaintiff lawyers know to calendar the statute of limitations. Fewer check the statute of repose at intake, and in older product cases that is a costly oversight. A repose period can bar a claim regardless of when the injury occurred, and sometimes before the injured person had any reason to know a claim existed. Evaluating it early separates viable aging-product cases from those that cannot be filed.
Limitations Versus Repose
A statute of limitations runs from accrual, typically the injury or its discovery. A statute of repose runs from a fixed event unrelated to the injury, such as the date a product was first sold, delivered, or put into service. When the repose period ends, the right to sue ends, even if the plaintiff was injured the day before. Courts treat repose as a substantive limit on liability rather than a procedural one, which is why it often resists tolling, including equitable tolling, discovery rules, and in many states tolling for minority.
Repose periods are set by statute and vary: some states apply ten or twelve years from first sale or delivery, others fifteen or twenty-five, some apply a rebuttable presumption that a product is not defective after a set number of years, and a number of states have no general product repose statute at all. Federal law provides a specific example in aviation: the General Aviation Revitalization Act sets an eighteen-year period for certain general aviation aircraft claims, with exceptions. Always confirm the current text in the state where the case would be filed, and consider whether the forum's choice of law rules would apply a different state's statute.
What Starts the Clock
The triggering event matters. Depending on the statute, the period may run from the date of first sale to an initial user, the date of delivery to the first purchaser, the date the product was first put into use, or the date of manufacture. For a used product, the relevant date is usually still the original sale, not the date of resale. For components, the question is when the component was first sold or installed, and a replacement part may have its own start date.
Find the date with manufacturer records, VIN or serial number decoding, warranty registrations, and dealer sales documents. If the product was substantially altered or rebuilt, argue that the clock restarted for the new or rebuilt portions. Some statutes address this directly, while others leave it to case law.
Common Exceptions
Statutes of repose contain exceptions, and a repose-barred case can sometimes still be revived through one of them. The most frequent are:
- Express warranty or stated useful life. If the manufacturer warranted the product for a period longer than the repose period, or represented a longer useful life, some statutes allow a claim within that longer period.
- Fraudulent concealment. Evidence that the manufacturer knew of a defect and hid it may toll repose or create an exception, especially in states that treat concealment as an independent ground. Such claims require proof of knowing concealment rather than mere failure to warn.
- Latent disease and toxic exposure. Some statutes exempt injuries from asbestos or other diseases with long latency periods, or begin the repose period at the date of exposure or diagnosis.
- Intentional torts. Many statutes do not protect intentional misconduct.
- Continuing duty to warn. Courts differ on whether a post-sale duty to warn creates a separate claim not governed by the original sale date. We examined related theories in our product liability coverage.
- Remanufacture or repair. A new product date can arise when a defendant substantially rebuilt the product.
Constitutional Challenges
Some state courts have invalidated repose statutes under open courts, equal protection, or similar provisions. Others have upheld them. The results vary by state constitution and by the type of claim, so a prior decision upholding or striking a particular statute is worth checking. A claim that appears barred may be preserved by such an argument, though counsel should assess the cost of an uncertain constitutional fight.
Practical Triage for Older Products
At intake, collect these facts before deciding whether to proceed:
- The make, model, serial number, and date of original sale or manufacture.
- Ownership history and any repairs or modifications.
- The state of manufacture, sale, injury, and the plaintiff's residence, for choice-of-law analysis.
- Any warranty or marketing statements about longevity.
- Evidence the manufacturer knew of the defect and when.
If repose is a problem, consider alternative defendants who may fall outside the statute. A distributor that sold or refurbished the product more recently, a service company that performed repairs, a premises owner who maintained the product, or a party that installed an aftermarket component can present different timelines. Evaluate negligence claims against those parties, which may not be subject to the same repose limit. In workplace injuries involving old equipment, a comp claim may be the primary route, and our workers' compensation coverage discusses how third-party claims are coordinated.
Pleading and Procedure
Repose is typically an affirmative defense, and defendants raise it by motion early. Be prepared with evidence on exceptions in response. Discovery directed to the manufacturer's sale records, communications about the defect, and the product's representation of useful life will be relevant. Courts differ on who bears the burden once the defendant shows that the repose period has run, and in some cases the plaintiff must prove the exception.
Key Points
- Check the statute of repose in the first intake review of any product case involving an older item.
- Identify the triggering event and find documents proving the date.
- Investigate exceptions, including warranties, concealment, and substantial alteration.
- Look for other defendants whose conduct is more recent.
- Verify the choice of law, as the answer may change the outcome.