Will COVID-19 Toll the Statute of Limitations in Product Liability Actions?
Stites & Harbison Client Alert, December 22, 2020
by Daniel E. Danford and Harlee Havens, Summer Associate (2020)
As the COVID-19 pandemic stretches into 2021 with no clear end in sight, a good question for product liability defendants is whether the pandemic will have a tolling effect on the applicable statute of limitations. In product liability cases, state law provides a statute of limitations to bar untimely-filed claims against the product manufacturer, distributor, or retailer. The point is to provide a predictable time period for a plaintiff to investigate the claim, identify the proper parties, and file suit. In Kentucky, for example, product liability claims are subject to dismissal if not filed within one year of injury, even if the plaintiff is unaware of the specific product manufacturer, or is “not made fully aware of the extent of his injury until several years later.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 64 (Ky. 2010); Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky. 1972).
Exceptions do exist, the most pertinent to the pandemic being that a statute of limitations may be equitably tolled in rare situations where the plaintiff is prevented from investigating a claim through no fault of his or her own. Nanny v. Commonwealth, 260 S.W.3d 815 (Ky. 2008). Although no court has yet decided this issue in a published decision, product liability defendants will likely face equitable tolling arguments based on the theory that the pandemic has limited access to the courts and to traditional sources of information such as libraries, with the result that a plaintiff has been denied the typical opportunity to investigate his or her product liability claim.
Although not a pandemic case, the Kentucky Supreme Court’s decision in Williams v. Hawkins, 594 S.W.3d 189 (Ky. 2020), suggests that the pandemic alone would not support a claim for equitable tolling. The Court in Williams emphasized that due diligence was a key factor in applying this doctrine, holding that “[e]quitable tolling pauses the running of, or tolls, a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Williams at 193. Thus, equitable tolling only applies if there is proof that the plaintiff diligently pursued his or her rights, and that some extraordinary circumstance beyond the plaintiff’s control prevented timely filing. Id. at 194.
The plaintiff in Williams invoked equitable tolling when she failed to timely file an action against the tortfeasor’s estate because she did not realize that the tortfeasor had died. The Court disagreed, holding that, “i]f Williams had pursued her rights diligently, readily available information would have allowed her to properly substitute parties and effectuate service within the statute of limitations period.” Id. at 195. In that case, no extraordinary circumstance prevented the plaintiff from discovering through publicly available documents that the tortfeasor was deceased. Id. at 196.
In helpful contrast, the Court in Williams discussed one of the rare circumstances in which equitable tolling should apply, a case in which the plaintiff properly investigated her claims and filed suit within the applicable limitations period, but the court clerk failed to file the complaint and issue summons until a day after the statute expired. In that circumstance, equitable tolling applied because the plaintiff exercised due diligence and the untimely filing was solely due to actions of the Clerk that were outside the plaintiff’s control.
While the COVID-19 pandemic is an “extraordinary circumstance” in a general sense, in this digital age, plaintiffs should have significant difficulty proving that the pandemic prevented them from investigating their products claims and filing within the applicable one year statute. To varying degrees, the pandemic may have created certain barriers to access to courts, libraries, and other governmental offices. But potential litigants have not been barred from filing complaints, or from hiring legal counsel to assist with investigating claims. Moreover, potential litigants have not been precluded from accessing publicly-available information through the internet. Thus, it would be difficult to prove that a plaintiff used due diligence but was nevertheless prevented from discovering his or her claim due to the COVID-19 pandemic
Courts across the United States have addressed this issue with differing results, though many of the cases arise in the habeas corpus context. A helpful case in the product liability context is Dragoman v. Midwest Hose and Specialty, Inc., 2020 U.S. Dist. LEXIS 223885 (D. Colo., December 1, 2020) (equitable tolling is not applicable because “the courts here have remained open and the judiciary’s electronic filing system made it possible for the plaintiff to file his claim against Mountain States despite the global pandemic”). See also Russello v. STIHL, Inc., 2020 U.S. Dist. LEXIS 156593 (D. N.J., August 28, 2020) (remand deadline not equitably tolled by Covid-related order).
Equitable tolling may have different application across jurisdictions, and a few states have enacted emergency rules or executive orders that toll or otherwise extend statutes of limitations for civil cases. It is important to investigate each state’s law with respect to their impact on the statute of limitations for product liability claims.