Repose Case Analysis

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The court’s decision is somewhat overbroad in its sweeping language in two places that Landis “abandons any distinction between a statute of limitations and a statute of repose.”

Landis does no such thing, however. It merely holds that, when the legislature uses the term “statute of limitation,” it includes statutes of repose within that definition.

Nevertheless, the two remain distinct.

It should be expected that the Wisconsin Supreme Court will, once again, agree to hear this case. Over the course of several cases in recent years, the court has tried to clear up the confusion that existed regarding statutes of repose in the 1990s, and to not hear this case one more time would leave that job unfinished.

It is impossible to predict how the court would rule, should it hear the case again, however, as there was an odd split among the justices the last time the court heard the case.

In Landis, four justices agreed that the term “statute of repose” is purely a judicial term, and is not a part of the legislature’s lexicon, and therefore, when the legislature refers to “statutes of limitation,” it includes statutes of repose within that meaning as well: Justices David T. Prosser, Diane S. Sykes, Ann Walsh Bradley, and Chief Justice Shirley S. Abrahamson.

Three justices disagreed, and concluded that the legislature must be presumed to know the difference, and therefore, the term “statutes of limitation” does not include statutes of repose: Justices N. Patrick Crooks, William A. Bablitch, and Jon P. Wilcox.

However, the mix of justices was very different when the court was unable to decide the case at bar. Justices Prosser and Sykes voted as would be expected — to affirm the trial court’s holding that “statutes of limitation” includes statutes of repose, when used by the legislature in the borrowing statute, as well as in the medical malpractice statutes.

Justice Bablitch also voted as would be expected — to reverse the holding.

However, both Chief Justice Abrahamson and Justice Bradley also voted to reverse, notwithstanding their conclusions in Landis that the term “statutes of limitation” includes statutes of repose, when used by the legislature.

Justice Crooks also voted contrary to what might be expected, joining Sykes and Prosser in voting to affirm. Justice Wilcox did not participate.

Perhaps, principles of stare decisis motivated Justice Crooks’ vote, while Bradley and Abrahamson were persuaded by the legislative inaction in not amending the statute after Leverence was decided.

	Links Wisconsin Court of Appeals Related Article Court equates statutes of limitation

In any event, should the court hear the case again, its fate will likely rest in the hands of Justice Patience D. Roggensack, who replaced Justice Bablitch this summer, and Justice Wilcox.

In the interim, however, the decision and reasoning in Landis must be considered to not be limited to medical malpractice actions, but to apply whenever the legislature uses the term “statute of limitations.”

It is noteworthy that the decision is completely void of any legislative history in terms of what the legislature’s goal was in enacting the borrowing statute, or any other analysis. Instead, the decision rests entirely on Landis.

As noted above, however, based on the unusual vote shifts in Landis and this case when it was before the Supreme Court, it is clear that at least three of the justices don’t see this case as being that simple. This makes it all the more likely that this case will wind up before the high court once again.

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David Ziemer

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David Ziemer can be reached by email.