Asbestos for the rest of us: the continued viability of statutes of repose in product liability.

INTRODUCTION

Several writers have examined statutes of repose in the context of state-based product liability claims. Scholarship in this area generally centers on the constitutionality of product liability repose statutes, or commentary articulating the policy concerns implicit in the balance of preserving plaintiffs' rights as measured against the hardship experienced by manufacturers and distributors defending lawsuits decades after a product entered the market. (1) This Note takes a different approach on the issue by evaluating whether statutes of repose have, in fact, succeeded as a response to the policy considerations and their justifications espoused in the legal community. This Note challenges whether statutes of repose truly address the concerns of litigants as well as judicial economy in product liability litigation, particularly illuminated in the subset of asbestos litigation. With over 700,000 claims and $70 billion in defense costs in the last three decades, (2) as well as the proclivity for extremely latent injuries, (3) asbestos litigation offers keen insight into the repose statute debate because it is a context in which these statutes exhibit the potential to most precisely serve as well as undermine policy considerations.

What follows is in many respects a troublesome tale because it highlights the quandaries that result when rules of law fail both substantiation on logical and evidentiary grounds and vital testing "against the obdurate matrix of empirical data." (4) To observe the counsel and poignant wisdom of the late journalist Hunter S. Thompson: "The wheels of justice grind small and queer in this life and if they seem occasionally unbalanced or even stupid and capricious in their grinding, my own midnight guess is that they were probably fixed from the start." (5)

Part I of this Note examines the efflorescence of statutes of repose in product liability across jurisdictions, the divergent approaches taken regarding the constitutionality of statutes of repose and the rise of the asbestos litigation "crisis." (7) Part II reviews the manner in which jurisdictions apply statutes of repose in product liability, and the varying policy considerations espoused by legal writers, legislatures, and courts. Part II discusses the impact of statutes of repose in product liability litigation and draws guidance from asbestos litigation, with particular treatment of asbestos claims under Indiana's statute of repose (8) within the Indiana Product Liability Act. (9) Also examined in Part II are the interests of the judicial economy (10) manifested in the enactment and interpretation of repose statutes. Do these statutes ameliorate the burdens placed upon courts faced with voluminous (11) asbestos claims or those on defendants in product claims generally?

Part III explores alternative legal and policy-oriented solutions to the challenges posed by statutes of repose within product liability cases and the subset of asbestos litigation, in the effort to maximize the interests of litigants juxtaposed with the interests of the judicial economy. Such alternatives have been proffered in the alteration of product liability principles in cases involving latent injuries, (12) broad judicial interpretation or the creation of exceptions to statutes of repose for certain products or types of product liability claims, (13) other litigation management techniques, (14) and legislative modification. (15) Part III concludes on the viability of statutes of repose in product liability and asbestos litigation, arguing for the implementation of the rebuttable presumption concept or total abolition. Part III strikes a more tenable balance of the aggregate interests of litigants along with those of the judicial economy.

I. THE DEVELOPMENT OF STATUTES OF REPOSE IN PRODUCT LIABILITY, CONSTITUTIONAL ASSAULTS ON REPOSE STATUTES, AND THE RISE OF THE ASBESTOS LITIGATION "CRISIS" (16)

Statutes of repose became relevant to the law of product liability less than three decades ago, concurrent with the advent of strict liability principles in the law of products. (17) In the context of this legal zeitgeist, statutes of repose represented a conscious, practical and remedial response to the marked theoretical shift in product liability law at the time. (18) As defendant manufacturers and distributors became increasingly vulnerable to product claims and the prospect of perpetual liability, various states quite naturally began placing additional limits on the time frame in which plaintiffs might recover in product claims. (19) The concomitant upsurge in asbestos-related litigation within product liability (20) provided a revealing context under which to illuminate the policy objectives and substantial shortcomings of statutes of repose.