In some jurisdictions, a product manufacturer will be relieved of liability if the injury allegedly caused by the product was sustained after the product's "useful life" expired. About 15 states have repose statutes which presume that the "useful life" of all products is identical, regardless of each product's actual useful life. This makes little sense, since the useful life of a product will vary depending on the specific product and its use by each consumer. But the notion that a product can be "modified" by and become "defective" with age, and thereby cause injury, can provide a defense even before the expiration of the presumptive "useful life" in states with a statute of repose, as well as in states without a statute of repose.

Generally, a statute of repose provides an absolute time limit on a product liability cause of action, as it starts the limitation period for bringing an action on the date of the product's manufacture or sale. A statute of limitations starts from the date of injury. A typical statute of repose will specify a presumptive number of years after which an action cannot be commenced. Generally, the legal justification for such an absolute limitation is twofold: (1) the difficulty in defending older claims caused by evidentiary problems; and (2) the increased likelihood that, with the passage of time, injury may be caused by factors beyond the manufacturer's control, such as alteration or modification of the product. Even when the statute of repose does not apply, or in states that have no such statute, the legal principles on which a statute of repose is founded may provide a successful defense.

First, it may be helpful to examine various statutes of repose. Arizona, Connecticut, Illinois, Indiana, New Hampshire, North Carolina, North Dakota, Nebraska, Oregon and Tennessee have statutes of repose that apply to most product liability actions. The repose periods vary from five to 12 years; however, the thrust of all the statutes is the same. Notwithstanding the statute of limitations, a product liability action based on the doctrine of strict tort liability must be initiated within the applicable limitations time period.

For example, in Illinois, it is "within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, which ever period expires earlier." In North Carolina, "No action ... arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption."

Several states carve out exceptions for causes of action based on negligence, breach of express warranty, intentional misrepresentation and fraudulent concealment. Illinois, for example, extends the repose statute if the injury results from an alteration, modification or change in the product since its date of first sale, where the action is brought against the seller who made, authorized or furnished the materials for the accomplishment of such change. As such, the 10-year period extends from the date of the alteration.

Some states have allowed the courts to make meaningful distinctions among products. After all, the actual useful life of a product is based on many factors. For example, Connecticut does not apply its 10-year limitation for a product liability action brought by one who is not entitled to workers' compensation, provided "the claimant can prove that the harm occurred during the useful safe life of the product." In determining whether the useful safe life has expired, Connecticut adopted virtually identical factors as those stated in the Model Uniform Product Liability Act. These factors include, but are not limited to, wear and tear or deterioration from natural causes; climatic and other conditions in which the product was used; the policy of the user and similar users as to repairs, renewals and replacements; representations, instructions and warnings made by the product seller about the useful safe life of the product; and any modification or alteration of the product by a user or third-party.

Minnesota has gone a step further to alleviate the harshness of the absolute time bar to recovery. Unlike other useful-life statutes, Minnesota's does not set an arbitrary and uniform repose period for all products. The defense turns on a particular product's actual useful life. Minnesota allows the manufacturer, distributor or seller to claim that the injury was sustained after the expiration of the useful life of the product in question: "The useful life of the product is not necessarily the life inherent in the product, but is the period during which with reasonable safety the product should be useful to the user." To prove that the useful-life period has expired, the manufacturer or seller may refer to the experience of users of similar products, taking into account many of the same factors as listed in the Model Uniform Product Liability Act.

The Supreme Court of Minnesota, in Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826 (1988), stated that the useful-life concept is ambiguous. The court recognized that it is not clear whether the concept of useful life refers to the life of the particular product that caused the harm, or if the life of that particular product should be measured by the useful life of all like products made by the manufacturer, or by the life of a generic product that is representative of the industry norm. In Hodder, the court held that the expiration of a product's useful life is not an absolute defense. Rather, it should be a factor weighed by the jury in order to determine the comparative fault of the parties. The court noted that the statute of repose "surely is meant to cover a product originally non-defective but which becomes 'defective' with age". While noting that a product's old age can make it "defective" such that it causes injury, the court acknowledged that such a "defect" is not the fault of the manufacturer.

Idaho, Washington and Kansas have adopted versions of the statute that are essentially identical to the Model Act. Idaho and Kansas employ presumptions that, if the harm was caused more than 10 years after the product's delivery to the first purchaser, who was not engaged in selling such products or using them as component parts, then the harm is presumed to have occurred after the expiration of the product's useful safe life. The plaintiff can rebut this presumption by clear and convincing evidence to the contrary. Washington has a 12-year presumptive period of repose, and the presumption may be rebutted by the consumer. However, if the plaintiff alleges that the harm was caused before this presumptive period of repose, then the defendant has the burden of showing that the useful safe life of the product expired in order to bar a product liability claim. In other words, once the defendant has shown that the product has been in existence for the statutory period, the burden shifts to the plaintiff to rebut the presumption by showing that the useful life has not expired.

Washington, Kansas and Idaho also carve out statutory exceptions to their useful-life statutes. The presumptive repose period will not apply in cases of express warranties, intentional misrepresentation, fraudulent concealment, prolonged exposure to a defective product, latent defects or where the harm was caused within the 10-year period but did not manifest itself until after that time.

Colorado and Kentucky have adopted similar approaches by enacting a statutory presumption that a product is not defective based solely on the passage of time. Whether grounded in strict liability or negligence, it is presumed until rebutted by a preponderance of the evidence that the product was not defective if the harm occurred more than 10 years after a product was sold for use or consumption in Colorado. Likewise, in Kentucky, a product will be presumed not to be defective if the harm occurred more than five years after the date of sale to the first consumer or more than eight years after the date of its manufacture.

Repose statutes have been subjected to sharp attack under state constitutional provisions. Most courts have held that these statutes are constitutionally sound, as they are rationally related to a reasonable legislative objective of reducing product liability insurance rates. However, repose statutes have been overturned in such jurisdictions as Alabama, Florida, New Hampshire, North Dakota and Utah. In Heath v. Sears, Roebuck & Co., 464 A.2d 288 (1983), the New Hampshire Supreme Court held that the 12-year bar imposed by the statute of repose was neither reasonable nor substantially related to the legitimate legislative objective of reducing product liability insurance rates. "The twelve year limit is unreasonable because the mere purchase of pills produced by a drug manufacturer in California, or a defective automobile made in Michigan, does not place the consumer on notice of a hidden defect injurious to his health or safety ... [P]ersons injured by defective products are deprived arbitrarily of a right to sue manufacturers responsible for those defective products by virtue of a statute that has become totally divorced from its underlying purpose," the court held.

The consumer may suffer from this confusion. For example, in North Carolina, a plaintiff must commence an action within six years after the date of the initial purchase of the product. Therefore, if a person is injured one day before the expiration of North Carolina's repose period but not able to institute an action until one week after the repose period has expired, he will be barred from suing. If the same injury was caused as a result of the same product in New York, even 20 years after the date of sale, the plaintiff would not be barred from recovery.

In Oquendo v. Teledyne Pines, 602 N.E.2d 56 (1992), an Illinois appellate court held that an accident was caused by the "old age" of a product, relieving the manufacturer of liability for negligence. The suit had been filed by an employee of the owner of a 33-year-old pipe bending machine who was injured when a hose burst, covering him with hydraulic fluid, which caused him to slip and fall. The plaintiff testified at his deposition that the reason for the rupture of the hose was "old age." The court held that the employer breached its duty to keep the machine in working condition and replace the worn hoses. However, it refused to find that the machine was dangerous because its hoses were not impervious to the wear and tear of old age, stating: "To find a duty under these circumstances would be like allowing a suit against God for defectively designing the human body because it bleeds when cut."

When a product is "old," it cannot easily be inferred that the accident or injury was caused by the existence of a defect at the time of manufacture. Furthermore, if there is no specific evidence of any latent defect, it may be argued that the product was used for many years, thousands of times, without any problems. Proof may be offered that the accident was attributable to ordinary wear and tear as well as poor maintenance. See Brandon v. Caterpillar Tractor Corp., 125 A.D.2d 625, 626 (N.Y. App. Div., 2d Dept., 1986). The age of the product, the amount of use it has received, as well as any failure to properly maintain the product may be elements of a successful defense.,

Of course, when litigating a product liability action in states with a statute of repose, counsel must be mindful or the applicability of the statute, whether it is a bar or defense, and whether there are any exceptions. But in states that do not have a statute of repose or where the statute does not apply, a defense may be founded on the same principles and policies that have caused many state legislatures to enact a statute of repose: Too much time may have passed to impose liability on the defendant manufacturer. The product has aged, and although it was originally non-defective, it has become "defective" with age. Simply put, the injury may have been caused by the "old age" of the product and not a negligent design or defect.