Every state has its peculiarities, oddities, firsts, and little known facts. For instance, did you know that New Jersey (this blogger’s home state) has the tallest water tower in the world or that it was the site of the first baseball game? Well, our case for today is from Tennessee. So, did you know?
- The world's largest artificial skiing surface is located in Gatlinburg
- Tennessee was the last state to secede from the Union during the Civil War and the first state to be readmitted after the war.
- Bristol is known as the Birthplace of Country Music
- Oak Ridge is known as the Energy Capital of the World
- Tennessee has more than 3,800 documented caves
- Nashville's Grand Ole Opry is the longest continuously running live radio program in the world. It has broadcast every Friday and Saturday night since 1925.
- Coca-Cola was first bottle in 1899 at a plant in downtown Chattanooga after two local attorneys purchased the bottling rights to the drink for $l.00.
And, Tennessee has a product liability statute of repose which may well be unique. We aren’t aware of any other quite like it. It provides that all product liability actions:
must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration date of the anticipated life of the product, whichever is the shorter.
Tenn. Code Ann. § 29-28-103. The “anticipated life” of a product is determined by the expiration date where one is required by law. So, in Tennessee “a product liability action must be brought within one year of the expiration date for products that are required, by law, to bear such a date.” Wahl v. General Electric Company, 2013 U.S. Dist. LEXIS 162320 at *19 (M.D. Tenn. Nov. 14, 2013). Such was the case in Wahl.
Plaintiff alleged she was injured by the contrast agent (containing gadolinium) used in two MRIs in May and November 2006 and that her injury was diagnosed in 2010. She filed suit in 2011. The FDA required the product’s label to contain a two-year expiration date. So, assuming the agent was produced on the same day it was administered to plaintiff (a “generous assumption”), its “anticipated life” expired two years later in 2008 and plaintiff needed to file her suit by May and/or November 2009, regardless of when she developed her injury. Id. at *2, *4. We recognize the harshness of the result, but that is what a statute of repose does. It cuts off liability absolutely. So, under Tennessee law, plaintiff’s claim is time barred.
But, before defendant could take advantage of this Tennessee quirk, it had to establish that Tennessee law applied to the case. Plaintiff was arguing that New Jersey, defendant’s principal place of business, law should apply.
As it turns out, the choice of law analysis required the court to consider an additional MDL peculiarity. The gadolinium litigation was subject to an MDL that was housed in the Southern District of Ohio. For the sake of convenience, the MDL court entered an order allowing potential plaintiffs to file their actions directly in the Southern District of Ohio regardless of whether jurisdiction or venue was proper. Id. at *4. Plaintiff Wahl took advantage of that order and filed her lawsuit in Ohio. At the conclusion of the MDL, the Wahl case was transferred to the Middle District of Tennessee – where plaintiff has resided since 1999. “Typically, when a defendant transfers a case to another district under 28 U.S.C. § 1404, the Erie doctrine requires the transferee court to apply the choice of law rules of the transferor state.” Id. at *11. This rule is premised on the fact that while plaintiff’s choice of forum may have been inconvenient, venue in the original jurisdiction was proper and therefore, that jurisdiction’s law should apply. Application of that rule in this scenario would mean applying Ohio’s choice of law rules despite the fact that Ohio had absolutely no connection to either party.
The Wahl decision examines opinions coming down on both sides of the issue, but ultimately sides with those that have determined that
it is appropriate to apply the choice of law rules of the "originating" jurisdiction (i.e., where the case would have [been] brought but for the CMO permitting direct filing), rather than the choice of law rules of the MDL Court. These courts have generally reasoned that the direct filing procedure is simply designed to promote judicial economy and conserve the parties' resources, not to alter the choice of law rules.
Id. at *13. Therefore, the court applied Tennessee’s choice of law rules to determine what substantive law applied to plaintiff’s claims. Id. at *17.
The rest of the decision is much less quirky – but has some good sound bites. Applying Tennessee’s “most significant relationship” test – where, all else being equal, the default rule is to apply the law of the place of injury – the court concluded that Tennessee law should apply as it is both the place of injury and plaintiff’s domicile.
Tennessee has the most significant relationship to the parties and the occurrence at issue, because Tennessee is where [the plaintiff] sustained her injury, Tennessee is her place of domicile and residence, Tennessee is where she . . . did use [the product], and Tennessee is the state where she was diagnosed and treated for injury.
Id. at *26 (citations and quotation marks omitted).
The also found that Tennessee’s policy interests outweighed those of New Jersey. In enacting the Tennessee Product Liability Act, “[t]he legislature considered the limitation of future liability to a reasonable and specific period to be one of the most important keys in solving the perceived products liability crisis.” Id. at *31. The court found further support for its policy analysis in a New Jersey Supreme Court decision:
New Jersey itself has determined that its own interests are not paramount to those of a state that chooses to extinguish or preclude certain otherwise viable products liability claims. Therefore, the court finds that Tennessee has a greater interest in the application of its substantive law to this case than New Jersey.
Id. at *32-33 (discussing Rowe v. Hoffman-La Roche, Inc., 917 A.2d 767 (N.J. 2007) (applying Michigan law in a products liability lawsuit involving a Michigan plaintiff, finding Michigan had the greater policy interest because it had enacted an immunity statute that would preclude liability for failure to warn).
Finally, the court had this to say about the interest of a Tennessee citizen in being subject to Tennessee law:
[A] Tennessee resident's substantive rights would essentially be at the mercy of foreign legislative bodies over which the plaintiff has no control and had no contacts. It would not promote certainty, uniformity, and predictability for Tennessee citizens to be subject to the fortuitous circumstance that the drugs that injured them were labeled or manufactured in a particular foreign jurisdiction. Indeed, holding that New Jersey law governs here would essentially mean that, for any other plaintiff injured by GE's drugs, New Jersey law would trump the laws of the other 49 states and frustrate those state's rights to protect their own citizens and/or to promote particular policy goals in those states.
Id. at *34.
The big news here isn’t that the court applied Tennessee law to a case involving a Tennessee plaintiff. Rather, we wanted you to know about the MDL direct-file exception for choice of law rules and to remind you about Tennessee’s unique statute of repose. While general rules are just that – don’t overlook the quirks and exceptions. They’re the gems that make each jurisdiction distinctive and in any given case, might be just the right fit.