Georgia’s product liability statute of repose requires actions to be commenced within 10 years of “the date of the first sale for use or consumption” of the product at issue. OCGA § 51-1-11(b)(2) (emphasis added). While the concept of “first sale” is clear and intuitive in the context of a product that may be sold and then later resold, it may be somewhat less clear as applied to a consumable product that is purchased repeatedly over a lengthy period of time. Is the “first sale” of such a product the earliest transaction by which the plaintiff ever obtained the product, or does “first sale” merely refer to the initial purchase of each individual unit of the product as opposed to any subsequent resales? The Georgia Court of Appeals recently clarified that it is the former – “first sale,” for purposes of the statute of repose, refers to the “first sale” of any unit of the product to the plaintiff. Thus, subsequent purchases of a new unit of the product do not come with their own fresh repose periods.

In L’Oreal USA, Inc. v. Burroughs, — S.E.2d —, 2024 WL 3082347 (Ga. Ct. App. June 21, 2024), the plaintiff alleged that she developed uterine fibroids from the use of several chemical hair relaxers (relaxers) manufactured by the defendants. The plaintiff claimed to have begun using one defendant’s relaxers in 1995 and other defendants’ relaxers in 2003, then continued using relaxers regularly until 2014. She developed uterine fibroids in 2018 and filed suit in 2022. The defendants moved to dismiss the plaintiff’s claims, arguing inter alia that the product liability claims were barred by Georgia’s 10-year statute of repose. The trial court denied the motions, reasoning that “[e]ach application of hair relaxer constituted exposure to a new product, with her last use occurring in 2014.”

An interlocutory appeal followed, and the appellate court reversed the trial court’s ruling as to the plaintiff’s strict liability claims. First, the appellate court observed that the statute of repose did not reference the application or use of the product, but rather the “first sale for use or consumption.” Moreover, construing each application, use or sale of the product as restarting the repose period “would render ‘first’ mere surplusage” in the statute. The plaintiff argued that under Campbell v. Altec Industries, Inc., 288 Ga. 535 (707 S.E.2d 48) (2011), the last of multiple sales of the same, finished product to one consumer triggers the commencement of the statute of repose. However, the appellate court explained that Campbell’s “last sale” referred not to the final sale of a repeatedly purchased product, but to the final sale of a finished product following various sales of components used in that product. Moreover, the appellate court rejected the trial court’s conclusion that “the statute of repose could ‘also potentially run from the date of [the plaintiff’s] injury in 2018’” as a misstatement of law. Contrasting statutes of repose with statutes of limitations, the appellate court observed that a statute of repose is not triggered by injury and is not related to the accrual of an action. Thus, although the plaintiff’s negligence claims survived under an exception to the statute of repose, her strict liability claims were untimely.

L’Oreal provides useful clarity for product liability cases involving products that are repeatedly purchased over time. Hopefully, that clarity will be recognized in other jurisdictions with similar “first sale” or “first purchase” language in order to provide the kind of certainty and finality to manufacturers that the statutes of repose were intended to impart.