How is the Georgia Common Meeting like Dr. Seuss’s kind-hearted Horton the Elephant? They each meant what they mentioned and mentioned what they meant. Horton was speaking about an elephant’s faithfulness (being 100%). The Georgia Common Meeting was speaking about requiring that product legal responsibility claims be initiated inside ten years from “the first sale to be used or consumption” of the product allegedly inflicting harm. In contrast to Dr. Seuss who delivers Horton’s heroic story in anapestic tetrameter, the courtroom in L’Oreal USA, Inc. v. Burroughs, 2024 GA App. LEXIS 250, *14 (GA Ct. App. Jun. 21, 2014), restricted its poetic meter to that one line. And so, will this publish.
Burroughs isn’t a drug or system case. However as is usually the case with prescribed drugs, plaintiff alleged that she bought and used sure beauty merchandise over a few years. Her first buy was in 1995 and her final was in 2014. Plaintiff alleges she suffered an harm in 2018 brought on by her prior use of these merchandise and she or he filed swimsuit in opposition to the producers in 2022. Id. at *22.
In response to defendants’ movement to dismiss her declare as barred by Georgia’s 10-year statute of repose, plaintiff argued that every buy and use of the merchandise “constituted a brand new publicity to a brand new product.” Id. at *5. An argument the trial courtroom accepted, ruling that the “final sale” triggered the statute of repose. Id. Fortuitously, the Court docket of Appeals disagreed.
Nowhere does the Georgia statute of repose point out software or use of a product. Its sole triggering occasion is “first sale to be used or consumption.” To interpret the statute as plaintiff urges would make the phrase “first” “mere surplusage.” Id. at *14-15. Had the Common Meeting needed to permit “any” sale to be the set off, relatively that the “first” sale, it will have mentioned so.
In specializing in the “final” sale, the trial courtroom misapplied an earlier resolution by the Court docket of Appeals wherein that courtroom held that the “final sale” of a completed product to a client, relatively than inter-manufacturer gross sales of element components, was the related sale. Id.at *9.
Plaintiff subsequent tried to argue that her claims ought to survive dismissal as a result of the query was actually one in every of causation. She ought to be given the chance to show that it was a product bought inside the repose interval that prompted the harm. Id. at *13. Not solely did the courtroom disagree, but it surely identified that plaintiff’s grievance made no allegations that will assist this new principle. Plaintiff didn’t allege that the merchandise modified over time nor that it was the merchandise she used inside ten years of submitting her declare that prompted her harm. Id. at *15. If plaintiff needed to make a run at bypassing the statute of repose, she wanted to introduce supporting allegations into the “framework of her grievance.” Id.
The trial courtroom additionally made a passing reference to the statute of repose presumably triggering from plaintiff’s date of harm. However the appellate courtroom merely identified that statutes of repose are usually not statutes of limitations, and the previous are usually not triggered by the harm. Id.at *9.
Under no circumstances did we undertake an entire survey of all merchandise legal responsibility statutes of repose, however a fast search did reveal that a number of use the identical “first sale” language as Georgia’s. So, we hope that different courts would likewise maintain that successive makes use of of the identical product by the identical individual for which harm is declare don’t restart the repose interval. Whereas that’s the message related to prescription drug litigation, we are able to’t assist however finish our publish with Horton’s extra profound and globally noteworthy lesson – An individual’s an individual, regardless of how small.
