We just returned from a four-night cruise that included a stop in Havana, Cuba. We won’t bore you with too many details about the dinner tablemate who proclaimed, “Let’s kill all the lawyers,” when we told her what we do for a living. And who commented, when we talked about an onboard trivia contest, “Well, cheating is in your DNA, since you are a lawyer.” But we will tell you that there was something magical about Havana. We toured the city in a cherry-red and white 1956 Chevy Bel Air. We walked, on a gorgeous sunny day, through cobblestone streets framed by buildings unchanged for hundreds of years. Change is now afoot, but its imprint is spreading slowly. For now, large portions of the city appear frozen in time.
But time does not stand still in litigation. Back in the summer, we published a guest post that included a 50-state survey of statutes of repose, those statutes that cut off the right to file suit a prescribed number of years after a product was manufactured or sold, regardless of whether a plaintiff’s cause of action has accrued when the repose period expires. Today’s case, Nunn v. Biomet, Inc., 2018 U.S. Dist. LEXIS 215395 (N.D. Ind. Dec. 21, 2018), involves Indiana’s statute of repose.
In Nunn, the plaintiff filed suit in the Biomet hip implant MDL pending in the Northern District of Indiana. The plaintiff’s claims accrued in Nebraska, so Nebraska law applied. Nebraska product liability law borrows the statute of repose of the state in which the product was manufactured – in this case, Indiana. Indiana’s statute requires suits to be filed within ten years after the product is delivered to the ultimate user. The plaintiff’s artificial hip joint was implanted on March 8, 2004. The plaintiff did not file her complaint until April 15, 2014, just over a month after the repose period expired. The defendant moved for summary judgment, arguing that the statute of repose barred the plaintiff’s claims. The plaintiff responded that her claims were tolled by the defendant’s fraudulent concealment of facts related to the prosthetic hip.
The court explained that, to survive summary judgment, the plaintiff was required to point to evidence supporting her fraudulent concealment claim. The only exhibit attached to the plaintiff’s brief was a 2006 communication in which the defendant informed surgeons about the possibility of unknown side effects caused by metal-on-metal articulating surfaces of the defendant’s artificial hip devices. But, the court held, “[N]either this statement, or [sic] any other statement that Ms. Nunn refers to, is accompanied by anything that would allow a reasonable trier of fact to find that it (or any other statement) caused her to delay filing suit.” Nunn, 2018 U.S. Dist. LEXIS 215395 at *6-7. Duh. And because the record did not allow a finding that any concealment by the defendant induced any delay in the plaintiff’s filing of her complaint, there was no tolling, and the defendant’s motion was granted.
Short and sweet (like our cruise) and unassailable (unlike our tablemate).