In Sharper Focus: The Contentious Life of Statutes of Repose

Tracy Ruther, v. George Kaiser, D.O., et al, challenges the constitutionality of the medical malpractice statute of repose. Let’s take a closer look at statutes of repose.

Both statutes of repose and statutes of limitations can bar a claim, but they are different. A statute of limitations limits the time in which a plaintiff may bring suit after the cause of action accrues, while a statute of repose potentially bars the plaintiff’s suit before the cause of action arises.

There are different statutes of repose in different fields of law. Three which have been the subject of constitutional challenges are the statute of repose for architects and builders, the statute of repose for products, and the statute of repose for medical claims.

Statutes of repose have been a significant aspect of tort reform legislation because manufacturers, contractors, businesses, and doctors want to know exactly when they are free of liability.  But statutes of repose can foreclose plaintiffs from filing suit before knowing they have been injured.

In 1987,  Hardy v. VerMeulen, the Supreme Court of Ohio struck down 2305.11(B), the then existing four year medical malpractice statute of repose.  The Court found that as applied, the statute impermissibly barred claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, in violation of the right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution.

In 1990, in Sedar v. Knowlton Construction Company, 49 Ohio St.3d 193, 551 N.E.2d 938 (1990), the Court upheld the constitutionality of the ten year statute of repose codified at R.C. 2305.131 for claims against builders and architects. By its terms, the ten-year period of repose began to run upon the completion of performance of the construction-related services. The plaintiff in Sedar was injured by a pane of glass in his dorm more than 10 years after the completion of the building. The majority in the Sedar case found that the right to a remedy provision of Article I Section 16 applied only to existing vested rights, and since the plaintiff’s claim had not vested during the period of repose, the statute was not unconstitutional as applied to him.

Interestingly, in the Sedar case, Justice Holmes, writing for the majority, went out of his way to distinguish the statute of repose for builders and architects from the statute of repose for medical claims, then codified at R.C. 2305.11(B).

“Unlike the four-year statute of repose for medical malpractice actions, R.C. 2305.11(B),  which begins to run from the date of malpractice (the date of “the act or omission constituting the alleged basis of the * * * claim”), the ten-year repose period of R.C. 2305.131 begins to run upon the completion of performance of the construction related services.

“Operation of the medical malpractice repose statute takes away an existing, actionable negligence claim before the injured person discovers it. Thus, “it denies legal remedy to one who has suffered bodily injury, * * * ” in violation of the right-to-a-remedy guarantee.” (citing Hardy v. Ver Muelen.)

In 1994, in Brennaman v. RMI, 70 Ohio St. 3d 460 (1994), the Court “revisited” and summarily overruled Sedar, holding that the Ohio Constitution guarantees a reasonable period of time to seek compensation after an injury, and finding the statute of repose for builders and architects violated this guarantee because it took away a remedy from the plaintiffs before they were aware they were injured.  The 4-3 decision in Brennaman was written by Justice Pfeifer.  After Brennaman was decided, many thought no statute of repose could pass constitutional muster.

Then came nuclear war.  In enacting a new version of 2305.131, as part of its massive tort reform effort (Am. Sub. H.B. 350), the legislature expressly stated its intent to repeal the old statute of repose for builders and architects, and “to respectfully disagree with those holdings [the majority in Brennaman] and to recognize the legal rationale set forth in the concurring-dissenting opinion in Brennaman v. R.M.I. Co….,” and  “to recognize that new section 2305.131 of the Revised Code, as enacted by this act, does not deny a remedy to a claimant who has a vested cause of action but instead bars a cause of action before it ever arises as stated by the Ohio Supreme Court in Sedar v. Knowlton Constr. Co.”

This brought down the wrath of Justice Alice Robie Resnick, author of the 1994 watershed decision, State ex. Rel. OATL v. Sheward, striking down Am.Sub.H.B. 350 for usurping judicial power in violation of the separation of powers doctrine (of which the legislature’s statement of intent “respectfully disagreeing” with the court’s constitutional interpretation about the statute of repose for builders and architects was cited as a prime example).

Time marches on.  Elections happen.  Justices retire.  And in 2008, along comes Groch.v General Motors Corp.,  a constitutional challenge to R.C. § 2305.10(C)(1), the products liability statute of repose, which barred claims filed 10 years after the product was delivered to the first purchaser or lessee. In an opinion written by then-Justice O’Connor, the Court explicitly rejected the notion that all statutes of repose violate Section 16, Article I. The Court found the products liability statute of repose constitutional on its face, because Groch had no vested right to a remedy during that 10 year period, but struck down the retroactive application of the statute as applied to Groch’s case. Instead of just overruling the Brennaman decision, which the majority scathingly denounced for pages, the Court declined to do so, confining Brennaman’s “unreasoned rule” to its holding only as to the prior version of 2305.131. (This harsh criticism of Brennaman did not sit well with Justice Pfeifer, its author. In his partial dissent in Groch he wrote, “But the majority, in its attempted de facto overruling of Brennaman, employs none of the Galatis factors. Instead, it  resorts to jurisprudence by insult.” He goes on, at some length, in ¶ 237).

Ultimately, the Court in Groch completely resurrected the reasoning of the previously overruled Sedar case to uphold the products liability statute of repose.

Significant for the Ruther case is dicta from Groch, mostly repeated from the Sedar case, that the medical malpractice statute of repose is indeed different from the others, because the medical malpractice statute of repose takes away an existing, actionable negligence claim before the injured person has discovered the injury and therefore denies the injured party’s right to a remedy. This distinction bodes well for the plaintiff in the Ruther case.  And it may be a chance for Justice Pfeifer and Chief Justice O’Connor to bury the hatchets from the Groch decision.

 

 

 

 

 

 

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