Statute of Limitations on Products Liability in Tennessee

Dangerous productIn the matter of, Spence v. Miles Laboratories, Inc., 810 F. Supp. 952 (E.D. Tenn. 1992), a hemophiliac, who allegedly contracted acquired immune deficiency syndrome (AIDS) from blood clotting factor concentrate, and his wife sued manufacturer of clotting factor. This Court had previously denied a motion by defendant Miles Laboratories, Inc. (“Miles”) for summary judgment. The case came before the Court on Miles‘ motion to reconsider.

Wynne Spence was born with hemophilia, an inherited disorder in which the hemophiliac’s own blood lacks certain key “clotting factors” which are essential to normal blood clotting. Persons withhemophilia are subject to episodes of uncontrolled bleeding which can be fatal. Wynne Spence was first diagnosed as having hemophilia B involving a Factor IX deficiency in June 1977 after an automobile accident. At that time, he received fresh frozen plasma and a Factor IX blood-clotting factor concentrate manufactured by Hyland known as PROPLEX. In January 1981, Mr. Spence received Factor IX blood-clotting factor concentrate while undergoing oral surgery for the removal of his wisdom teeth. Mr. Spence also received Factor IX blood clotting factor concentrate in September 1982 while being treated for an injury to his knee.  KONYNE–HT is a product manufactured and distributed by Cutter Laboratories which is a division of Miles. KONYNE–HT is a Factor IX concentrate derived from human plasma which has undergone heat treatment during its processing to kill the AIDs virus as it contends. In July and August 1986, Wynne Spence was treated with KONYNE–HT as prescribed by his family physician.

Wynne Spence was diagnosed as suffering from AIDS on March 22, 1990, after being tested for AIDS for the first time. WynneSpence and Jennifer Spence filed suit against Miles in the Circuit Court of Hamilton County, Tennessee, on March 20, 1991, and Miles subsequently removed the case to Federal Court under diversity jurisdiction.  Mr. Spence died on March 24,1992, as a result of health complications associated with AIDS. This suit was carried on by his surviving spouse, Jennifer Spence, pursuant to Tennessee Wrongful Death Statute Tenn.Code Ann. § 20–5–106(a). Plaintiff claimed that Miles was negligent in not withdrawing from the market KONYNE–HT derived from blood or plasma which had not been tested or screened for the AIDS virus, and also negligent for failing to warn that the plasma it used to manufacture the KONYNE–HT administered to Mr. Spence had not been tested for the presence of the AIDS virus.

The first question to be resolved by the Court was whether plaintiff could maintain a cause of action against Miles pursuant to Tenn.Code Ann. § 68–32–102 which permits a cause of action against a company who does not test its blood or plasma for AIDS.  The next point of analysis for the Court was whether the AIDS statute provided the Spences a cause of action in this case. The general rule in Tennessee is that “a statute will be presumed to operate prospectively and not retroactively unless it clearly appears from the statute that the Legislature intended it to operate retroactively. A statute should not be given retroactive operation unless its words make that imperative.” Smith v. State Farm Mutual Auto Ins. Co., 278 F.Supp. 405, 410 (E.D.Tenn.1967)Miles collected the plasma, processed it, and manufactured and distributed the KONYNE–HT Lot No. 20P010 to Erlanger Hospital in 1984–1985 before § 68–32–102 became effective.  The Court held there was no language in the statute which indicated that the Tennessee General Assembly intended the statute to have retroactive application. Section 68–32–102 cannot be retroactively applied to hold Miles liable in damages to plaintiff.

The Court held that the claim was time barred being outside the statute of limitations.  Section 68–32–102 contains no reference to a statute of limitations or statute of repose. However, in Tennessee, “the gravamen of an action, rather than its designation as an action for tort or contract, determines the applicable statute of limitations.” Pera v. Kroger Co., 674 S.W.2d 715, 719 (Tenn.1984).  

The plaintiff’s claims manifestly relate to a product. The Tennessee Products Liability Act, Tenn.Code Ann. § 29–28–102(6) defines a “product liability action” as
“all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. It shall include, but not be limited to, all actions based upon the following theories: … negligence; … breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever.”
The Court held that plaintiff’s claims clearly fell within Tennessee’s broad definition of products liability actions.  Consequently, they are governed by the statute of repose applicable to products liability cases, Tenn.Code Ann. § 29–28–103(a), which provides:

“Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28–3–104, 28–3–105, 28–3–202 and 47–2–725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date of which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.”
The term “anticipated life” is defined in Tenn.Code Ann. § 29–28–102(1) as follows:
“The anticipated life of a product shall be determined by 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.”
Miles was required by law to place the expiration date on all lots of KONYNE–HT that it manufactured. 42 U.S.C. § 262(a)(2); C.F.R. 610.60(a)(4) and 610.61(d). The expiration date on the KONYNE–HT Lot No. 20P010 which was administered to Mr. Spence was June 5, 1987.  Thus, plaintiff had one year from June 5, 1987, within which to timely file the products liability action against Miles. Since plaintiff did not file the complaint against Miles in the Hamilton County Circuit Court until March 20, 1991, the action is time-barred under Tenn.Code Ann. § 29–28–103(a).  In his case, the Court held and articulated that, Tenn.Code Ann. § 29–28–103(a), effectively prevented him from litigating his claim against Miles. The Court went on to state that, the statute represents public policy which affords plaintiffs what the legislature deems to be a reasonable time to present their claims; and it protects defendant and the courts from having to deal with stale cases where the search for the truth and justice may be seriously impeded by the death or disappearance of witnesses, fading memories, disappearance of documents or other loss of material evidence.
Plaintiff next argued that the products liability statute of repose should be tolled under the equitable doctrine of fraudulent concealment. This is a diversity case and Tennessee’s law of fraudulent concealment applies to the plaintiff’s state law claims.  In order to meet her burden, the plaintiff must prove that her cause of action was known to and fraudulently concealed by Miles. Id.; Ray v. Scheibert, 224 Tenn. 99, 450 S.W.2d 578, 580 (1969). The essential element of concealment may consist of withholding information where there is a duty to disclose by virtue of a confidential relationship or making use of some device to mislead thus involving act and intention. Benton, 825 S.W.2d at 414. A plaintiff seeking to establish fraudulent concealment must prove that the defendant took affirmative action or committed some overt act to conceal the plaintiff’s cause of action and that the plaintiff could not have discovered the existence of the cause of action despite exercising reasonable diligence. Duncan v. Leeds, 742 F.2d 989, 992 (6th Cir.1984);  The Court concluded that mere silence by Miles or the failure by Miles to disclose known facts does not constitute sufficient affirmative action of concealment required to prove fraudulent concealment. Moreover, there was no confidential or fiduciary relationship between Miles and Wynne Spence such as physician and patient which imposed a higher duty on Miles to disclose the information about untested blood donors to Mr. Spence.
About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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