There is a controversy over whether state statutes of repose apply to FTCA cases. In the past 3 years, more than a dozen federal courts have tangled with this question, reaching opposite conclusions even within the same district. For FTCA claimants, the question of applying state repose law can make or break a case. The FTCA does not contain a statute of repose, but more than 30 states have a statute of repose for medical malpractice, as well as other causes of action. A statute of repose functions like a statute of limitations by limiting the time to file a cause of action. It completely eliminates the cause of action, sometimes before it even accrues. A statute of limitations generally begins to run when a cause of action accrues. A statute of repose often begins to run from the date of negligence and ends after a specified time, regardless of whether a claim has accrued. The general purpose of a statute of repose is to eliminate the right to sue a defendant after a certain amount of time has passed. Statutes of repose do not have “discovery rule” exceptions, and tolling provisions typically do not apply.

Strategies for Plaintiffs Facing Repose

There are a few strategies that may get FTCA claims past this dangerous defense.

Check for Waiver.

Some states consider repose to be an affirmative defense subject to waiver if the Government fails to raise it. Illinois and Tennessee courts require the affirmative defense of repose to be timely pled, and have refused to dismiss claims when the defendant fails to do so.

Argue Preemption.

The strongest argument for plaintiffs against repose is federal preemption. A federal law preempts a state law when the state law conflicts with the federal law. In Kubrick v. United States, the Supreme Court held that the FTCA is a “substantive part of the United States’ waiver of immunity which preempts any applicable state limitations period.” The Kubrick Court went a step further and stated that the statute of limitations period is a statute of repose. Id.

To learn more about the FTCA and Statute of Repose, read Laurie Higginbotham’s article in the June 2014 issue of AAJ’s Trial Magazine.