What Is the Statute of Limitations for Filing a Product Liability Claim in Virginia?
When we purchase a product, we expect it to work as marketed. We don’t expect to suffer an injury with its use. However, sometimes products are designed or manufactured with flaws that lead to such injuries. When this happens, you have the right to pursue legal compensation for your injuries and other damages. Virginia, as all states, has a time limit on when you can file one of these claims.
In Virginia, unless a statutory exception applies, any product liability lawsuit must be brought within two years after the cause of action accrues. VA. Code § 8.01-243(A). Accrual is generally triggered by the date one is injured or killed by the product. In addition, as opposed to most states, in Virginia, a “right of action” does not apply until an injury occurs, not when the damage resulting from the injury is uncovered: VA. Code § 8.01-230. The two-year statute of limitations clock starts to run from the date the injury is sustained, whether the plaintiff knows about the cause of the injury or the injury itself. This can produce extremely harsh results, particularly where injuries do not manifest for years after exposure to a product. Failure to file the lawsuit within two years from the date the injury is sustained may forever bar the claim.
Statutory exceptions to this harsh rule
The Virginia General Assembly has carved out the following discrete exceptions for asbestos, breast implant and implanted medical device cases. In actions for personal injury resulting from exposure to asbestos or asbestos-containing products, the cause of action does not begin to accrue until a diagnosis of asbestosis, mesothelioma or other debilitating asbestos-related injury or disease is first communicated to the person or his agent by a physician. In products liability actions against parties other than a health care provider arising out of the implantation of any breast implant, the clock on the two- year SOL begins running when the fact of the injury and its causal connection to the implantation is first communicated to the person bay a physician.
Finally, in products liability actions against parties other than health care providers for injury to the person resulting from the implantation of any medical device, the two-year clock starts ticking when the person knew or should have known of the injury and its causal connection to the device. VA Code § 8.01-249 (4), (7) and (9). In all other product liability cases, including defective medical devices that were not implanted, the harsh accrual rule applies – the SOL begins to run the date the injury is sustained even if the person is unaware during the two-year period of the injury or its causal connection to the defective product.
Statute of repose
There is also a statutory limitation on certain actions for damages arising out of defective improvements to real property. Sometimes the improvement is a product, for example, fire escape stairs. In these products liability cases, the action may not be brought more than five years after the performance or furnishing of the services and construction concerning the improvement. In the case of the fire escape example, the SOL would expire five years after the date of installation. VA. Code § 8.01-250.
For these reasons, it is critical to any successful products liability case that you contact an experienced Virginia products liability attorney as soon as possible. If a dangerous or defective product has left you injured, you may be entitled to compensation to help you cover medical costs, lost income, and more. Do not let your claim expire. At Phelan Petty, our experienced Richmond product liability attorneys are here to go over your case, investigate what occurred, and represent you in your claim for damages. To schedule a free consultation, please call 804.980.7100 or send us a message through our contact form. We fight for clients throughout Virginia.
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Michael Phelan is a Virginia trial attorney who practices with a special focus on traumatic brain injury (TBI) cases, pharmaceutical and medical device claims, product liability cases, and truck accidents. Michael’s peers have consistently recognized him for his excellence as a trial lawyer, and his clients have praised him for his commitment to deep research, his outstanding communication skills, and his sincerity and dedication.