John Wilbers and his client Jennifer Asher testify against a Statute of Repose bill in the Missouri House.

Missouri may begin rolling back protections for people harmed by consumer products. The new legislation, two separate bills proposed by Senator Jeannie Riddle and Representative Curtis Trent, would seek to place additional limits on a plaintiff’s ability to sue when injured by defective or unsafe products. Already in place for certain real property and medical malpractice claims, the new legislation would introduce what is called a “Statute of Repose” to diminish the timeline for when suit can be brought for a products liability case.

Missouri already has certain limits in place on which restrict when a plaintiff may bring suit. Those limits are called Statutes of Limitation. Statutes of Limitation set timelines for the maximum amount of time that a party has to initiate legal proceedings. Those limitations, however, are often subject to a rule of discovery, meaning that the clock begins to run when the “wrong” has occurred or when it been discovered. Statutes of Limitations are also subject to issues of “equity”, meaning that the length of time proscribed for bringing a suit can be extended for issues like fraud or concealment.

Statutes of Repose are different. The proposed legislation would limit the time allowed to file a products liability suit to 15 years after the product was released into the general stream of commerce. That means that the clock starts ticking before you’ve ever even been harmed.

Let’s discuss a real-life example of how this new legislation could affect Missouri residents:

In 1944, General Motors designed the DUKW for the U.S. Army during World War II. This amphibious vehicle was used to transport military personnel and supplies on both land and water. Amphibious Vehicle Manufacturing later acquired these vehicles and modified them for use by civilian tourist businesses. The modified boats, later known as the Stretch Duck 07, featured fixed canopy roofs and expanded seating. Ozarks Scenic Tours, Inc. (later acquired by Ripley Entertainment, Inc.) purchased the “duck boats” to offer paid scenic tours of Table Rock Lake in Missouri.

In 1999, 13 passengers on a duck boat in Arkansas died when the boat capsized. The fixed canopy roofs and other design issues made the vehicles unsafe and prevented passengers from escaping as it sank. That year, the National Transportation Safety Board (“NTSB”) issued safety recommendations for modifications of the Stretch Duck 07. Ripley Entertainment did not comply with the recommendation. In fact, the last modifications to the boats were made between 1996 and 1998.

On July 19, 2018, Ripley Entertainment received weather warnings issued by the NTSB. Ripley ignored the warnings and took tourists on the water with a duck boat that they knew to be unsafe under those conditions. The boat capsized and 17 passengers who were trapped inside drowned. (Learn more about the duck boat accident here)

Ripley Entertainment knew about the boats’ dangerous design. They, along with other businesses, made no attempts to adhere to the safety recommendations issued by the NTSB. Instead, they continued to advertise their duck boat tours and encouraged the public to book cruises on their equipment.

After the accident, surviving passengers and relatives of the deceased tourists filed suit against Ripley Entertainment. Federal criminal charges were also filed against the company. All litigants alleged the same conduct: the duck boats were known to be dangerous; Ripley knew of the dangers in taking the boats out in the stormy weather; and the company set sail anyway—putting profit over safety. The main goal of the civil lawsuits was to get the boats off the water and to protect the public.

If the proposed legislation had been in effect at the time of the accident, each civil plaintiff would have been prevented from filing suit.

One of the litigants, Ms. Jennifer Asher, lost her father in the accident. She, along with Attorney John Wilbers, testified at committee hearings about the dangers posed by this legislation. Asher and Wilbers warned the committees of the pitfalls of this legislation and expressed the need for maintaining consumer protections. (Learn more about Asher and Wilbers’ testimony here).

Sen. Riddle argued that her proposed legislation addresses modifications to products released into the stream of commerce. As Wilbers articulated at the hearing, not only does the bill fail to explicitly allow a cause of action against the modifier of the product, the bill still would have allowed Ripley Entertainment to escape liability in the duck boat case, because the last modifications to the duck boats occurred more than twenty years prior to the accident.

Rep. Trent’s proposed legislation gives no exception to products that have been modified; with his proposed legislation, the harm would have had to occur prior to 1954 for the negligent business to be held accountable (i.e., before Ripley even existed). His proposed legislation also reduces Sen. Riddle’s proposed 15-year timeline to 10 years.

Other advocates of the proposed legislation argued that the bills do not prevent suit when a person has knowingly concealed any defective or unsafe condition in a product, nor when an action is brought for negligent service or maintenance of a product. These exceptions still would have prevented redress in the above case because Ripley’s never actually concealed the dangerous features of their boats, nor did their maintenance of the boats contradict any mandatory service requirements.

Products liability suits give the public redress when businesses introduce dangerous products into the stream of commerce. The proposed measures, however, come at the behest of Missouri business advocates seeking to place arbitrary limits on when an individual can sue for being harmed by their products.

Rep. Trent confirmed that the goal of the bill was intended to “protect companies from frivolous litigation.” The practical effect of the bill, however, is to prevent citizens from having the ability to sue when a company releases a hazardous product to the public for a long enough period of time.

Overall, the purpose of the legislation is to protect companies’ profits rather than the individuals who are actually harmed. If you are concerned about losing your consumer protections under Missouri law, contact your senators and representatives about this legislation.

If you or your family have been injured by a dangerous product, contact The Wilbers Law Firm today.