Over the past half-century, the issue of which state’s statute of limitation should be applied in a multi-state tort action has repeatedly been changed by our Supreme Court. Back when many of our older lawyers were trained, the issue was easy: a statute of limitations was procedural (unless statutorily tied to the cause of action), and thus the law of the forum controlled. If only one state had a long enough statute and the defendant could be served there, that limitation period controlled. Then, in 1973, the court adopted a weighing of the states’ contacts rule. This lasted until 1996, when the “government interest” test was enunciated, focusing on the particular issue raised in the litigation. Then, in 2008, the court turned to the Restatement’s “most significant relationship” of the parties and occurrence test to pick the statute; and in 2012, we were told that this test was to be applied only if the choice was outcome-determinative.
Now, a new try by the court, in a case that has spanned the last few rules: In McCarrell v. Hoffmann-La Roche (Jan. 24, 2017)—an Accutane case that has been up and down through the system a few times since 2003—the court reanalyzed the Restatement and combined some of the earlier tests. The two-year statutes in Alabama and New Jersey differed because New Jersey recognized a tolling rule, while Alabama did not. The court adopted §142 of the Restatement of Conflicts of Laws (Second). “[U]nless the exceptional circumstances of the case make the result unreasonable,” and unless “maintenance of the claim would serve no substantial interest of the forum,” and “the claim would be barred under the law of the state having a more significant relationship to the parties and the occurrence,” the forum will apply its own statute of limitations, the court ruled.
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