Statute of Repose Issues Illustrated in the Dismissal of Camp Lejeune Pollution Claims

A statute of limitation procedurally prevents lawsuits from being brought after a legislatively specified period of years from the date of an injury. A legislated statute of repose, in contrast, runs from a specified event other than the injury in question and prohibits even claims that only arose after that specified ending date. The event might be when a product was first sold, when assets were distributed in probate, or when a construction project was completed. In other words, a legal claim may be extinguished under a statute of repose before the event producing the claim occurred.

In broad summary of complex litigation involving several courts including the U.S. Supreme Court, North Carolina's ten year statute of repose recently caused cancer cases that occurred more than ten years after exposure to polluted water at Camp Lejeune to be dismissed (Bryant v. United States). Federal pollution legislation in question (the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)), while preempting (overriding) state statutes of limitations, does not preempt state statutes of repose. Nor did a North Carolina amendment of its statute of repose retroactively allow the pollution lawsuit to continue. This noteworthy decision highlights the continuing issues surrounding statutes of repose.

I recently commented on a Tennessee Supreme Court decision that in part relied upon a four year construction statute of repose to prevent an injured hotel guest from suing when a handicap accessible shower bench broke. Is it just to have a seemingly meritorious personal injury claim preemptively dismissed from court before the injury occurred? The answer to this question may be debated.

A variety of influences created modern statutes of repose. A statute of limitation's time period could be extended by several situations. A litigant who was a minor when the injury occurred might be granted a time extension. An individual who for a variety of reasons failed to discover the injury was granted an extended time to sue under the "discovery rule." These factors were perceived to make it more difficult to accurately calculate liability insurance rates. There was concern that potentially open-ended claims were more difficult to defend against and could lead to frivolous lawsuits. There was a desire for finality and certainty concerning past actions.

However, many state constitutions contain an "open court" provision that in essence provides that every injured person shall have legal redress in the courts. Some state supreme courts determined that this provision overrode a legislated statute of repose. An additional ongoing issue is the interaction between a remedy granted by federal law and a state statute of repose. Does the federal law or the state law have priority? Sometimes federal legislation expressly preempts (overrides) state law but frequently this is unclear. There is a sense of injustice when a personal injury claim cannot be heard by a jury of one's peers. This is especially evident as statutes of repose vary from state to state. A claim that is dismissed in one state might be heard in another state.

It is appropriate for legislatures to review both statutes of limitation and statutes of repose. Are the time periods appropriate? What types of cases should be excluded from a statute of repose? A number of legal issues surround newly enacted or amended statutes of repose. A variety of court decisions prevent statutes of repose from operating retroactively, for example, as noted above. There would be merit in a "blue-ribbon commission" suggesting model statute of limitation and statute of repose legislation to the states. Of course, a variety of political considerations will doubtless influence any legislative action.