Article
It's About Time: The Long Overdue Demise of Statutes of Repose in Latent Toxic Tort Litigation
Case Western Reserve Law Review -- forthcoming
(2017)
Abstract
Latent toxic illness typically does not become manifest until months, years, or decades after a person’s exposure to a toxic substance. The timing, extent, and characteristics of its physical manifestation are unpredictable and vary among individuals. Similarly, property damages associated with environmental contamination may not be detected for years, and the diseases caused by the contamination could take even longer to manifest. Accordingly, toxic harms present unique challenges for plaintiffs confronted with time limitations on their actions. Statutes of repose operate in conjunction with statutes of limitations to provide defendants with maximum protection from stale claims. Unlike statutes of limitations, however, they run from an event external to the plaintiff’s injury, such as the sale of a product or the completion of an improvement to real property. Even if the statute of limitations has not yet expired, the plaintiff’s claim may nevertheless be barred if it is brought after the repose period. Plaintiffs whose latent illnesses take longer to become detectable are likely to be time-barred; conversely, those who get sick sooner, i.e. before the repose period expires, may bring their claims. This article examines the ways in which statutes of repose, and their narrow judicial interpretations, negatively impact latent illness claimants. The article demonstrates that to date any attempts by state legislatures to remedy this situation have fallen short. I conclude that the best solution is the simplest one – an absolute statutory exclusion for claims based on latent injuries.
Keywords
- toxic torts,
- torts,
- tort law,
- statutes of repose,
- statutes of limitations,
- latent toxic illness,
- latent injuries
Disciplines
Publication Date
2017
Citation Information
Jean M. Eggen. "It's About Time: The Long Overdue Demise of Statutes of Repose in Latent Toxic Tort Litigation" Case Western Reserve Law Review -- forthcoming (2017) Available at: http://works.bepress.com/jean_eggen/43/