METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D., AND ROBERT SCHORLEMER, M.D. v. EMMALENE RANKIN (Majority)

SUPREME COURT CASES

Laws-info.com » Cases » Texas » Supreme Court » 2010 » METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D., AND ROBERT SCHORLEMER, M.D. v. EMMALENE RANKIN (Majority)

State: Texas

Court: Supreme Court

Docket No: 08-0316

Case Date: 03/12/2010

Judge: Don R. Willett

Plaintiff: METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D., AND ROBERT SCHORLEM

Defendant: EMMALENE RANKIN (Majority)

Preview:METHODIST HEALTHCARE SYSTEM OF SAN
ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D.,
AND ROBERT SCHORLEMER, M.D. v. EMMALENE
RANKIN (Majority)
IN THE SUPREME COURT OF TEXAS
No. 08-0316
Methodist Healthcare System of San Antonio, Ltd., L.L.P.,
W.C. Schorlemer, M.D., and Robert Schorlemer, M.D., Petitioners,
v.
Emmalene Rankin, Respondent
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
Argued September 9, 2009
Justice Willett delivered the opinion of the Court.
This case pits the ten-year statute of repose for healthcare-liability claims1 against the Texas Constitution s Open
Courts provision.2 We examine for the first time whether the latter saves a malpractice claim if the former has expired.
The answer is no.
The Open Courts provision does not confer an open-ended and perpetual right to sue; it merely gives litigants a
reasonable time to discover their injuries and file suit. 3 The Legislature may set an absolute cut-off point for
healthcare suits, as it has for other suits,4 so long as the repose period is a reasonable exercise of the Legislature s
police power to act in the interest of the general welfare. The ten-year statute of repose at issue adopts a
constitutionally permissible policymaking judgment of the Legislature. Accordingly, we reverse the judgment of the
court of appeals and render judgment for the petitioners.
I. Background
After experiencing abdominal pain, Emmalene Rankin consulted a physician in July 2006 and learned that a surgical
sponge had been left inside her during a November 1995 hysterectomy. Rankin sued the hospital where the operation
was performed, Southwest Texas Methodist Hospital, and two physicians, Robert and Wendell Schorlemer.
Rankin filed her suit, however, in October 2006, almost eleven years after the alleged negligence. The defendants
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moved for summary judgment, arguing that Rankin s claim was barred by section 74.251(b) of the Civil Practice and
Remedies Code, the ten-year statute of repose for healthcare-liability claims. Rankin submitted evidence that she did
not know of the sponge and could not have discovered it in the exercise of reasonable care prior to expiration of the
ten-year repose period.
Section 74.251(b) provides:
A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that
gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10
years or they are time barred.5
The trial court granted summary judgment, but the court of appeals reversed, holding the statute unconstitutional under
the Open Courts provision.6 This appeal followed.
II. Analysis
When reviewing the constitutionality of a statute, we presume that the Legislature has not acted unreasonably or
arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking
down legislation as arbitrary or unreasonable. 7 The burden is on him who attacks a law for unconstitutionality and
courts need not exert their ingenuity to find reasons for holding the law invalid. 8
Under the Open Courts provision, [a]ll courts shall be open, and every person for an injury done him, in his lands,
goods, person or reputation, shall have remedy by due course of law. 9 In Lebohm v. City of Galveston,10 the Court
undertook its first in-depth analysis of the Open Courts provision. Justice Calvert, writing for a unanimous Court,
formulated the test that we follow today:
[L]egislative action withdrawing common-law remedies for well established common-law causes of action for injuries
to one s lands, goods, person or reputation is sustained only when it is reasonable in substituting other remedies, or
when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this
type is not sustained when it is arbitrary or unreasonable.11
We have quoted this language with approval in later decisions.12
The statute at issue is a statute of repose, not a statute of limitations, and our analysis must appreciate that the two are
not synonymous. We recently recognized that there are significant differences between the two. 13 The Legislature
stated explicitly that section 74.251(b) is intended as a statute of repose applicable to all claims.
The term statute of repose may not submit to a simple, universal definition. Generally, a statute of repose specifies a
longer period than that found in the statute of limitations applicable to the same cause of action.14 Statutes of repose
begin to run on a readily ascertainable date, and unlike statutes of limitations, a statute of repose is not subject to
judicially crafted rules of tolling or deferral.15
Indeed, the key purpose of a repose statute is to eliminate uncertainties under the related statute of limitations and to
create a final deadline for filing suit that is not subject to any exceptions,16 except perhaps those clear exceptions in
the statute itself.17 Without a statute of repose, professionals, contractors, and other actors would face never-ending
uncertainty as to liability for their work. Insurance coverage and retirement planning would always remain problematic,
as would the unending anxiety facing potential defendants.18 In recognizing the absolute nature of a statute of repose,
we have explained that while statutes of limitations operate procedurally to bar the enforcement of a right, a statute of
repose takes away the right altogether, creating a substantive right to be free of liability after a specified time. 19 The
Legislature could reasonably conclude that the general welfare of society, and various trades and professions that serve
society, are best served with statutes of repose that do not submit to exceptions even if a small number of claims20 are
barred through no fault of the plaintiff, since the purpose of a statute of repose is to provide absolute protection to
certain parties from the burden of indefinite potential liability. 21 The whole point of layering a statute of repose over
the statute of limitations is to fix an outer limit beyond which no action can be maintained. 22 One practical upside of
curbing open-ended exposure is to prevent defendants from answering claims where evidence may prove elusive due
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to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer
exist.
Rankin argues that the statute is unreasonable, and thus unconstitutional, because it cut off her right to sue before she
had an opportunity to discover her injury. But Open Courts analysis is not quite this myopic; focusing solely on
Rankin s lost right to sue ignores the broader societal concerns that spurred the Legislature to act.
Section 74.251(b) was enacted in 2003 as part of House Bill 4, a top-to-bottom overhaul of Texas malpractice law to
make affordable medical and health care more accessible and available to the citizens of Texas, 23 and to do so in a
manner that will not unduly restrict a claimant s rights any more than necessary to deal with the crisis. 24 The omnibus
bill makes explicit findings describing the Legislature s concern that a spike in healthcare-liability claims had fueled an
insurance crisis that was harming healthcare delivery in Texas.25 The Legislature specifically found that the crisis had
often made insurance unavailable at any price.26 The Legislature made these findings after conducting hearings and
amassing evidence of the problems facing healthcare providers as a result of enduring liability claims for indeterminate
periods of time. We have recognized that the length of time that insureds are exposed to potential liability has a
bearing on the rates that insurers must charge. 27
In enacting the repose piece of House Bill 4, lawmakers made a fundamental policy choice: the collective benefits of a
definitive cut-off are more important than a particular plaintiff s right to sue more than a decade after the alleged
malpractice. A few plaintiffs such as Rankin will encounter the Legislature s statutory roadblock, unable to bring
claims through no fault of their own, but some defendants would likewise suffer unfortunate consequences were
potential liability left indeterminate. The constitutional inquiry is whether the Legislature acted unreasonably or
arbitrarily. We cannot brand as arbitrary lawmakers policy rationales for granting healthcare providers a substantive
right to be free from liability after ten years, even if a plaintiff could have discovered her injury no sooner.
Surveying legislation around the nation, repose statutes for medical-negligence cases are commonplace. Many
jurisdictions have enacted such statutes for malpractice claims,28 and Texas ten-year period is the longest of them all.
Fourteen of these repose statutes are expressly inapplicable to foreign-object claims29 not true of section 74.251(b)
and of twenty other statutes that apply equally to sponge cases, no statute gives plaintiffs more time to sue than the
Texas statute.30
Other jurisdictions have rejected constitutional challenges to repose statutes in medical-malpractice cases premised on
open courts provisions or similar provisions guaranteeing the right to a remedy,31 with two inapposite exceptions.32
And most of the failed challenges were to statutes with much shorter repose periods than in Texas.33 Rankin
acknowledges there is no statutory exception in section 74.251(b) for foreign-object cases, but argues the Legislature
appropriately deferred to this Court to make an exception under the open courts provision on a case-by-case basis. The
Texas Legislature, unlike legislatures in other states,34 has not enacted an exception to its repose statute for foreign-
body cases, nor is there any indication that it intended to give this Court authority to adopt such an exception on a
case-by-case basis. On the contrary, the Legislature expressly characterized the ten-year statute as a statute of repose,
and as explained above a statute of repose by its nature and purpose admits to no implied exceptions. This construction
is particularly prudent given that the Texas repose statute for defective-product cases explicitly makes an exception for
latent diseases that may stay hidden until after the repose period expires.35 By contrast, lawmakers made clear in
section 74.251(b) that the ten-year period for medical-negligence claims applies to all claims. 36
And of course, there is our own precedent, which rejected an Open Courts challenge to the ten-year statute of repose
covering claims against architects and engineers, an area of law where injuries may also be difficult to discover.37
Before today s case, numerous courts of appeals decisions have addressed the constitutionality of various Texas
statutes of repose, and have upheld them every time.38
Section 74.251(b) is a reasonable exercise of the Legislature s police power to provide a certain cutoff to claims after
an ample period of ten years, five times longer than the general limitations period for bringing a negligence action,39
and five times longer than the general limitations period for bringing a healthcare-liability claim.40 As one court of
appeals has noted in a decision where we found no reversible error, and as is apparent, the ten-year limit is
substantially more protective of individual rights than the two-year limit found in the corresponding statute of
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limitations.41 We presume that the Legislature s judgment was not an arbitrary or unreasonable exercise of its police
power, and Rankin has offered no compelling argument or proof to the contrary.
The court of appeals held section 74.251(b) unconstitutional because it restricted Rankin s right to sue before she had a
reasonable opportunity to discover the wrong and bring suit, 42 but the essential function of all statutes of repose is to
abrogate the discovery rule and similar exceptions to the statute of limitations. The court of appeals saw little to
distinguish statutes of limitations and statutes of repose.
A statute of repose, by design, creates a right to repose precisely where the applicable statute of limitations would be
tolled or deferred. More to the point, a statute of repose serves no purpose unless it has this effect. To hold that a
statute of repose must yield to the plaintiff s inability to discover her injury would treat a statute of repose like a statute
of limitations, and would effectively repeal this and all other statutes of repose. To quote our recent discussion in
Galbraith Engineering Consultants, Inc. v. Pochucha:
Such a construction would defeat the recognized purpose for statutes of repose, . . . unaffected by rules of discovery or
accrual. As already observed, statutes of repose create a substantive right to be free from liability after a legislatively
determined period. In contrast, statutes of limitations are procedural devices operating as a defense to limit the remedy
available from an existing cause of action. A statute of repose thus represents the Legislature s considered judgment as
to the inadequacy of the traditional statutes of limitations for some types of claims.43
Under the court of appeals decision, all plaintiffs have a reasonable time to discover their injuries,44 a holding that
means never-ending exposure to liability, which in turn injects actuarial uncertainty into the insurance market. This
indefiniteness wholly undermines the purpose of House Bill 4 and of statutes of repose generally: to declare a no-
exceptions cut-off point and grant a substantive right to be free of liability. Repose statutes are not exempt from Open
Courts challenges, but the reviewing court cannot ignore the Legislature s broader reasons for limiting a litigant s rights
and its considered judgment in exercising its police power in the interest of the general welfare.
The court of appeals also relied on language from Trinity River Authority v. URS Consultants, Inc. Texas,45 where we
upheld a statute of repose, but noted:
[T]his Court s decision in [Robinson v. Weaver, 550 S.W.2d 18 (Tex. 1977)], illustrates the important public purpose
underlying statutes of repose. We held in that case that the discovery rule does not apply to cases of medical
misdiagnosis. Unlike malpractice based on leaving a foreign object in the patient s body, or negligently performing a
vasectomy, there is often no physical evidence establishing a misdiagnosis, thus increasing the risk of stale or even
fraudulent claims.46
This language does not compel us to rule that foreign-object cases cannot constitutionally be subjected to a statute of
repose in light of the Open Courts provision. First, while we referred generically to statutes of repose in the quotation,
Robinson did not in fact concern a statute of repose at all, but a two-year statute of limitations. Second, Robinson did
not involve a constitutional challenge; it did not decide whether the statute of limitations in issue could survive a
challenge under the Open Courts provision or any other constitutional provision. Robinson held that the discovery rule
applicable to sponge cases was not applicable to a medical misdiagnosis case. Third, our discussion of Robinson was
in a section of Trinity River Authority discussing the constitutionality of the statute of repose under federal and state
substantive due process requirements. The Court had already finished its analysis under the Open Courts provision and
ultimately rejected all constitutional challenges to the statute. In short, the quotation, read in context, does not hold or
fairly imply that the Court would view a ten-year statute of repose in foreign-object cases as necessarily vulnerable to
an Open Courts challenge.
The Legislature could have excepted foreign-body cases from the statute of repose, as some states have done.47 But
such an exception would introduce its own form of arbitrariness, since it would apply even to those foreign-body
cases, such as needle cases, where the surgeon s error is not particularly likely to go undetected for long periods.
Regardless, the fact that the Legislature could have excepted foreign-body cases does not render the statute that was
enacted unconstitutional. Our constitutional review asks only if the statute represents a reasonable exercise of the
police power in the interest of the general welfare, 48 a review that focuses on whether the legislation is arbitrary or
unreasonable. 49 As detailed above, the statute survives this test.
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III. Conclusion
We have never declared a statute of repose unconstitutional and decline to do so today. Section 74.251(b) s grant of
absolute protection against indefinite potential liability does not violate the Texas Constitution. The Open Courts
provision confers a constitutional right of access but not an everlasting one. Texas ten-year repose period will weigh
heavily on a small number of plaintiffs like Rankin, who belatedly discover a res-ipsa-like injury. A statute of repose,
by design, will always bar some otherwise-valid claims, but that result is the whole point of a statute of repose, and is
the price of repose. 50
The Legislature considered competing public and private interests and determined that ten years, the most generous
repose period in the nation, is a reasonable final deadline regardless of accrual or discovery issues. Giving wide berth
to the Legislature s policy judgments, as we must, we cannot say lawmakers offended the Constitution by cutting off
malpractice claims after giving claimants a decade to bring suit. We thus reverse the court of appeals judgment and
render a take-nothing judgment in favor of the petitioners.
Don R. Willett
Justice
OPINION DELIVERED: March 12, 2010__
1 Tex. Civ. Prac. & Rem. Code 74.251(b).
2 Tex. Const. art. I, 13.
3 Yancy v. United Surgical Partners Int l, Inc., 236 S.W.3d 778, 784 (Tex. 2007).
4 See Tex. Civ. Prac. & Rem. Code 16.008 (repose for actions against architects, engineers, interior designers, and
landscape architects), 16.009 (repose for actions against a person who constructs or repairs an improvement to real
property), and 16.011 (repose for actions against a registered public surveyor or a licensed state land surveyor).
5 Tex. Civ. Prac. & Rem. Code 74.251(b).
6 261 S.W.3d 93, 103.
7 Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).
8 Tex. Nat l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939).
9 Tex. Const. art. I, 13.
10 275 S.W.2d 951 (Tex. 1955).
11 Id. at 955 (on rehearing).
12 Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 262 (Tex. 1994); Sax v. Votteler, 648 S.W.2d
661, 665 (Tex. 1983); Waites v. Sondock, 561 S.W.2d 772, 774 (Tex. 1977).
13 Galbraith Eng g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 (Tex. 2009).
14 See Tex. Civ. Prac. & Rem. Code 16.008 (ten-year repose statute for actions against architects, engineers, interior
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designers, and landscape architects), 16.009 (ten-year repose statue for actions against a person who constructs or
repairs an improvement to real property), and 16.011 (ten-year repose statute for actions against a registered public
surveyor or a licensed state land surveyor).
15 E.g., Tex. Civ. Prac. & Rem. Code 16.011(a)(ten-year repose statute for actions against a registered public surveyor
or a licensed state land surveyor begins to run on the date the survey is completed for surveys completed on or after
September 1, 1989); see also 51 Am. Jur. 2d Limitation of Actions 12 (2000) ( [A] statute of repose extinguishes a
cause of action after a fixed period of time (usually measured from the delivery of the product, the completion of the
work, or some other action of the defendant), regardless of when the cause of action accrued. ); Trinity River Auth.,
889 S.W.2d at 261 ( Unlike traditional limitations provisions, which begin running upon accrual of a cause of action, a
statute of repose runs from a specified date without regard to accrual of any cause of action. ).
16 See 51 Am. Jur. 2d Limitation of Actions 12, 18 (2000) (explaining that unlike statutes of limitations, repose statutes
reflect the legislative conclusion that a point in time arrives beyond which a potential defendant should be immune
from liability for past conduct ).
17 E.g., Tex. Civ. Prac. & Rem. Code 16.011(b) (providing that if the claimant presents a written claim during the 10-
year repose period, the period is extended for two years from the date the claim is presented).
18 See Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987) ( In contrast to statutes of limitation, statutes of
repose serve primarily to relieve potential defendants from anxiety over liability for acts committed long ago. ).
19 Galbraith Eng g, 290 S.W.3d at 866.
20 Rankin offered no evidence that a significant number of claims are barred by the operation of the repose statute in
issue. One study has determined that ninety-nine percent of claims brought against OB-GYNs are reported within nine
years. Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, Part Three, 36
Tex. Tech. L. Rev. 169, 188 (2005). In upholding a ten-year statute of repose applicable to architects and engineers as
striking a fair balance between the legislative purpose of protecting against stale claims and the rights of litigants to
obtain redress for injuries, we cited a study finding that 99.6 percent of claims against architects were brought within
ten years. Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 264 & n.6 (Tex. 1994).
21 Galbraith Eng g, 290 S.W.3d at 866 (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).
22 Holubec, 111 S.W.3d at 37.
23 Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.11(b)(5), 2003 Tex. Gen. Laws 847, 884 85.
24 Id. 10.11(b)(3).
25 Id. 10.11(a).
26 Id. 10.11(a)(10).
27 Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).
28 See infra notes 29 30.
29 Cal. Civ. Proc. Code 340.5 (West 2010); Colo. Rev. Stat. 13-80-102.5(3)(b) (2009); Ga. Code Ann. 9-3-72 (2009);
Iowa Code Ann. 614.1(9)(a) (West 2010); Mass. Gen. Laws Ann. ch. 260, 4 (West 2010); Miss. Code Ann. 15-1-
36(2) (a) (2009); Ohio Rev. Code Ann. 2305.113(D)(2) (LexisNexis 2010); 40 Pa. Cons. Stat. Ann. 1303.513(b) (West
2009); S.C. Code Ann. 15-3-545(B) (2009); Tenn. Code Ann. 29-26-116(a)(4) (2009); Utah Code Ann. 78B-3-
404(2) (a) (2009); Vt. Stat. Ann. tit. 12, 521 (2009); Wash. Rev. Code Ann. 4.16.350 (West 2010); Wis. Stat. Ann.
893.55(1m)(3) (West 2009).
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30 Three states and one territory have a three-year statute of repose. Conn. Gen. Stat. Ann. 52-584 (West 2005); La.
Rev. Stat. Ann. 9:5628(a) (2010); Nev. Rev. Stat. Ann. 41A.097(2) (LexisNexis 2009); Guam Code Ann. tit. 7, 11308
(2009). Four states have a four-year statute of repose. Ala. Code 6-5-482 (2009); Fla. Stat. Ann. 95.11(4)(b) (West
2009); 735 Ill. Comp. Stat. Ann. 5/13-212(a) (West 2010); Kan. Stat. Ann. 60-513(c) (2010). Four states have a five-
year statute of repose. Ky. Rev. Stat. Ann. 413.140(2) (LexisNexis 2010); Md. Code Ann., Cts. & Jud. Proc. 5-
109(a)(1) (LexisNexis 2010); Mont. Code Ann. 27-2-205(1) (2009); Or. Rev. Stat. 12.110(4) (2007). Three states have
a six-year statute of repose. Haw Rev. Stat. Ann. 657-7.3 (LexisNexis 2009); Mich. Comp. Laws Ann. 600.5838a(2)
(West 2000); N.D. Cent. Code 28-01-18(3) (2009). Five states other than Texas have a ten-year statute of repose. Mo.
Ann. Stat. 516.105(3) (West 2009); N.C. Gen. Stat. 1-15(c) (2009); Neb. Rev. Stat. Ann. 44-2828 (LexisNexis 2009);
Va. Code Ann. 8.01-243(C) (2009); W. Va. Code Ann. 55-7B-4(a) (LexisNexis 2009).
31
See Aicher v. Wis. Patients Comp. Fund, 613 N.W.2d 849 (Wis. 2000); Schendt v. Dewey, 520 N.W.2d 541, 547 (Neb.
1994); Choroszy v. Tso, 647 A.2d 803 (Me. 1994); Kush v. Lloyd, 616 So.2d 415, 419-22 (Fla. 1992); Hawley v.
Green, 788 P.2d 1321, 1323-24 (Idaho 1990); Mega v. Holy Cross Hosp., 490 N.E.2d 665, 668-71 (Ill. 1986); Barlow
v. Humana, Inc., 495 So.2d 1048 (Ala. 1986); Crier v. Whitecloud, 496 So.2d 305, 309-10 (La. 1986); Hill v.
Fitzgerald, 501 A.2d 27, 33-35 (Md. 1985); Dunn v. St. Francis Hosp., Inc., 401 A.2d 77, 80-81 (Del. 1979); Harrison
v. Schrader, 569 S.W.2d 822, 827-28 (Tenn. 1978); Barke v. Maeyens, 31 P.3d 1133, 1136-39 (Or. Ct. App. 2001);
Golden v. Johnson Mem l Hosp., Inc., 785 A.2d 234, 243-46 (Conn. App. Ct. 2001); Plummer v. Gillieson, 692 N.E.2d
528, 532 (Mass. App. Ct. 1998). See also Robin D. Miller, Annotation, Validity of Medical Malpractice Statutes of
Repose, 5 A.L.R. 6th 133, 161-63 (2005).
We note that in some states, the statute of repose provides minors a longer period to bring claims; they may sometimes
bring claims even after the period of repose has elapsed. See, e.g., Haw Rev. Stat. Ann. 657-7.3 (LexisNexis 2009)
(providing that minors may bring claims up until six years after their tenth birthday, regardless of the normal six-year
repose period).
32 McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 18 19 (Ky. 1990) (examining only
whether a common-law right of action existed prior to the passage of adoption of the Kentucky Constitution, but not
examining whether the statute was reasonable, as Texas does); Hardy v. VerMeulen, 512 N.E.2d 626, 627 28 (Ohio
1987) (examining solely whether the plaintiff had a remedy at the time he discovered his injury without an inquiry into
the reasonableness of the statute).
33 See, e.g., Aicher v. Wis. Patients Comp. Fund, 613 N.W.2d 849 (Wis. 2000) (five-year statute); Schendt v. Dewey,
520 N.W.2d 541, 547 (Neb. 1994) (ten-year statute); Choroszy v. Tso, 647 A.2d 803 (Me. 1994) (three-year statute);
Kush v. Lloyd, 616 So.2d 415, 419-22 (Fla. 1992) (four-year statute); Hawley v. Green, 788 P.2d 1321, 1323-24 (Idaho
1990) (two-year statute); Mega v. Holy Cross Hosp., 490 N.E.2d 665, 668-71 (Ill. 1986) (four-year statute); Barlow v.
Humana, Inc., 495 So.2d 1048 (Ala. 1986) (four-year statute); Crier v. Whitecloud, 496 So.2d 305, 309-10 (La. 1986)
(three-year statute); Hill v. Fitzgerald, 401 A.2d 27, 33-35 (Md. 1985) (five-year statute); Dunn v. St. Francis Hosp.,
Inc., 401 A.2d 77, 80-81 (Del. 1979) (three-year statute); Harrison v. Schrader, 569 S.W.2d 822, 827-28 (Tenn. 1978)
(three-year statute); Barke v. Maeyens, 31 P.3d 1133, 1136-39 (Or. Ct. App. 2001) (five-year statute);}highlight2
Golden v. Johnson Mem l Hosp., Inc., 785 A.2d 234, 243-46 (Conn. App. Ct. 2001) (three-year statute); Plummer v.
Gillieson, 692 N.E.2d 528, 532 (Mass. App. Ct. 1998) (seven-year statute).
34 See supra note 29.
35 Tex. Civ. Prac. & Rem. Code 16.012(d)(3).
36 Tex. Civ. Prac. & Rem. Code 74.251(b) ( This subsection is intended as a statute of repose so that all claims must
be brought within 10 years or they are time barred. ).
37 Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261 63 (Tex. 1994). However, Trinity River
Authority held that the statute of repose did not violate the Open Courts provision because it did not abrogate a well-
established common-law cause of action, an issue we do not reach. Id. at 262 63.
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38 See Zaragosa v. Chemetron Invs., Inc., 122 S.W.3d 341 (Tex. App. Fort Worth 2003, no pet.); Gordon v. W. Steel
Co., 950 S.W.2d 743 (Tex. App. Corpus Christi 1997, writ denied); Dallas Mkt. Ctr. Dev. Co. v. Beran & Shelmire,
824 S.W.2d 218 (Tex. App. Dallas 1991, writ denied); Barnes v. J.W. Bateson Co., 755 S.W.2d 518 (Tex. App. Fort
Worth 1988, no writ); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex. App. Houston [1st Dist.] 1987, no writ); Suburban
Homes v. Austin-Nw. Dev. Co., 734 S.W.2d 89 (Tex. App. Houston [1st Dist.] 1987, no writ); Nelson v. Metallic-
Braden Bldg. Co., 695 S.W.2d 213 (Tex. App. Houston [1st Dist.] 1985, writ ref d n.r.e.); McCulloch v. Fox & Jacobs,
Inc., 696 S.W.2d 918 (Tex. App. Dallas 1985, writ ref d n.r.e.); Sowders v. M.W. Kellogg Co., 663 S.W.2d 644 (Tex.
App. Houston [1st Dist.] 1983, writ ref d n.r.e.); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex. App. Houston [1st
Dist.] 1981, writ ref d n.r.e.); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex. Civ. App. Eastland 1977, writ ref d
n.r.e). In addition, the United States Court of Appeals for the Fifth Circuit has at least twice upheld other Texas
statutes of repose against Open Courts challenges. See Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d
355, 361 (5th Cir. 2005) (holding fifteen-year statute of repose for certain defective-products claims does not violate
Open Courts provision); Brown v. M.W. Kellogg Co., 743 F.2d 265, 268 (5th Cir.1984) (holding that the ten-year
statute of repose for architects, engineers, and builders does not violate the Open Courts provision).
39 Tex. Civ. Prac. & Rem. Code 16.003.
40 Id. 74.251(a).
41 McCulloch, 696 S.W.2d at 925.
42 261 S.W.3d at 96.
43 290 S.W.3d 863, 868 (Tex. 2009) (citations omitted).
44 261 S.W.3d at 103.
45 889 S.W.2d 259 (Tex. 1994).
46 261 S.W.3d at 100 (emphasis omitted) (quoting Trinity River Auth., 889 S.W.2d at 263 64) (citations omitted)).
47 See supra note 29.
48 Lebohm v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955) (on rehearing).
49 Id.
50 S.V. v. R.V., 933 S.W.2d 1, 23 (Tex. 1996).
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