The Products Statute provides:
Notwithstanding any other statutory provisions to the contrary, all actions . . . brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within two years after the claim for relief arises and not thereafter.
C.R.S. § 13-80-106 (emphases added). Two defendants in the Lynch case moved to dismiss the lawsuit pursuant to the Products Statute, asserting that all claims were barred because Plaintiff’s claims for relief arose at the time of her decedent’s diagnosis. (Plaintiff sued eight separate manufacturers believed to have created or sold the various products with which her decedent worked. Following the magistrate judge’s favorable Report and Recommendation on limitations, the remaining defendants joined in the motion. Ultimately, all claims against all defendants were dismissed on limitations grounds.) Plaintiff countered that the Death Statute controlled and that limitations thereunder did not commence until the date that her husband passed away, almost a year after his diagnosis. (The Death Statute states that “[t]he following civil actions . . . must be commenced within two years after the cause of action accrues, and not thereafter: . . . All actions for wrongful death.” C.R.S. § 13-80-102(1)(d) (emphasis added).)
The court ultimately agreed with Defendants, specifically finding that the limitations period was triggered by the diagnosis in October 2016 and then ran for two years. The court concluded that the plain language of the Products Statute contemplates application to product liability claims for death as well as injury and expressly negates “any statutory provisions to the contrary.” To the extent that a conflict exists between the Products Statute and the Death Statute, the court found that the Products Statute is more specific, addressing a discrete class of cases (i.e., product liability actions), and therefore controls over the more general Death Statute, which facially applies to all claims for wrongful death. See Persichini v. Brad Ragan, Inc., 735 P.2d 168, 172 (Colo. 1987) (“In the absence of a clear expression of legislative intent to the contrary, a statute of limitations specifically addressing a particular class of cases will control over a more general or catch-all statute of limitations.”); see also Kambury v. DaimlerChrysler Corp., 50 P.3d 1163, 1166 (2002) (holding that a similar products liability statute of limitations controls over the wrongful death statute of limitations). (Denying a motion for reconsideration that raised, in part, a new argument that the Products Statute should apply only to direct product liability causes of action asserted by the injured party, while the Death Statute should apply in wrongful death cases brought by a spouse or heirs, the court noted that such position has no support and ignores the patent overlap and consequential conflict between the express provisions of the two statutes of limitation.)
The impact of Lynch on Colorado product liability cases remains to be seen. For many product liability cases where the basis for a claim and the ultimate injury occur on the same day (such as a fatal crash caused by a defective bicycle), there is no actual conflict between the statutes of limitations, and this ruling will have no impact. In cases where an allegedly defective product causes patent injury that does not result in contemporaneous death, however, the impact could be significant. Arguing that a plaintiff who has lost a loved one is precluded from any recovery, or even a day in court, can be a risky proposition given the resources required to draft such a motion and the natural hesitancy of courts to grant them. Nonetheless, the Lynch case may encourage more defendants to take that leap of faith to file a motion to dismiss, hopefully resulting in greater clarity concerning procedural rules that have gone unchallenged for decades.
Proper application of the Products Statute, as occurred in Lynch, will likely prompt potential plaintiffs to bring their claims earlier rather than later. Although an absolute bar to wrongful death claims timely filed under the Death Statute but in contravention of the Products Statute may seem harsh, the reality of the situation is that waiting until an injured person passes away before filing a lawsuit deprives potential defendants of the benefit of that person’s testimony. Defendants are then forced to conduct extensive discovery in an effort to obtain information from secondary sources that may only have been possessed by the decedent (for example, the brands, frequency, and details of work performed with allegedly toxic products). Furthermore, discovery prejudice to product liability defendants in the form of spoliated or lost information would be exacerbated the longer an injured person survives if the Death Statute were to apply to claims for wrongful death allegedly caused by a defective product. The Lynch decision balances the interests of the parties and at least removes one source of speculation in a game that often already feels like “pin the tail on the donkey.”
Annie Anderson is an associate of Wheeler Trigg O'Donnell LLP in Denver, where she represents clients in complex commercial litigation matters. Annie is a member of the DRI Product Liability Committee, as well as the DRI Young Lawyers and Women in the Law Committee, among others. Bryan Cross is a partner of Wheeler Trigg O'Donnell LLP in Denver. Jasmine Reed is an associate a Foley & Lardner LLP in Chicago.