                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON


OLANDA CARTER,                    )
                                  )
                                  )                  FILED
           Plaintiff/Appellant,   ) Shelby Circuit No. 88570 T.D.
                                  )                   January 11, 2000
VS.                               ) Appeal No. W1999-02233-COA-R3-CV
                                  )                  Cecil Crowson, Jr.
R. J. REYNOLDS TOBACCO CO.,       )                 Appellate Court Clerk
                                  )
                                  )
           Defendant/Appellee.    )


           APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE
                 THE HONORABLE D’ARMY BAILEY, JUDGE



CURTIS D. JOHNSON, JR.
Memphis, Tennessee
Attorney for Appellant

ALBERT C. HARVEY
STEPHEN C. BARTON
THOMASON, HENDRIX, HARVEY,
JOHNSON & MITCHELL
Memphis, Tennessee
DALTON L. TOWNSEND
AMY V. HOLLARS
HODGES, DOUGHTY & CARSON
Knoxville, Tennessee
JAMES R. JOHNSON
GREGORY R. HANTHORN
JONES, DAY, REAVIS & POGUE
Atlanta, Georgia 30308-3242
Attorneys for Appellee




AFFIRMED




                                                    ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
        Olanda Carter appeals from the Circuit Court of Shelby County, which dismissed his

product liability action finding that it was barred by the applicable ten-year statute of

repose. For the reasons stated herein, we affirm the decision of the trial court.



                                      Facts and Procedural History



        The basic facts of this case are not in dispute. Olanda Carter (“Plaintiff” or

“Appellant”) was born in 1932. In approximately 1946, at the age of fourteen, Mr. Carter

began smoking CAMEL brand cigarettes, which were manufactured by the Defendant R.J.

Reynolds Tobacco Company.                    His habit gradually increased until he eventually was

smoking a pack and a half of cigarettes per day. 1



        By approximately 1977, Mr. Carter was suffering from various health ailments,

including hypertension and emphysema.                      Around that time, Mr. Carter quit smoking.

However, his physical condition continued to deteriorate, culminating with a diagnosis of

lung cancer in November 1996, for which he underwent surgery to remove the infected

lung.



        On June 25, 1997, Mr. Carter filed the present action pursuant to T.C.A. § 29-28-

101, et seq., asserting claims for negligence, strict liability, breach of express and implied

warranties, negligent performance of a voluntary undertaking, fraud, misrepresentation,

and conspiracy. By order of the trial court, this action was consolidated with four other

tobacco lawsuits pending in Shelby County Circuit Court.



        On February 19, 1998, Defendant R.J. Reynolds filed a motion and supporting

memorandum seeking to have the case dismissed, arguing that all the claims were barred

by the ten-year statute of repose applicable to product liability actions because such claims

sought recovery for injuries allegedly caused by a product which was purchased more than

ten years prior to the filing of the suit. See Tenn. Code Ann. § 29-28-103(a). On


        1
            At all relevant tim es, Mr. C arter con sistently sm oked only the CA MEL b rand of c igarettes.

                                                          2
November 13, 1998, the trial court entered an order granting Reynold’s motion, severing

the action from the remaining consolidated tobacco suits and declaring that the court’s

judgment as to all claims asserted by Olanda Carter was final pursuant to Rule 54.02 of

the Tennessee Rules of Civil Procedure.



       Plaintiff has appealed the trial court’s dismissal asserting several issues for this

court’s consideration. However, all of the issues center on the question of whether the ten-

year product liability statute of repose, T.C.A. § 29-28-103(a), serves to preclude the

present suit.



                                      Law and Analysis



       A statute of repose imposes a different constraint on a party than does a statute of

limitations. The latter has been described as affecting only a party's remedy for a cause

of action, while the running of a statute of repose has been said to nullify both the remedy

and the right. Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995); Bruce v. Hamilton, 894

S.W.2d 274, 276 (Tenn. Ct. App. 1993) . The critical distinction in classifying a statute as

one of repose or one of limitations is the event or occurrence designated as the "triggering

event," i.e., the event that starts the "clock" running on the time allowed for the filing of suit.

Wyatt v. A-Best Products Co., 924 S.W.2d 98, 102 (Tenn. Ct. App. 1995). In a traditional

statute of limitations, the triggering event is typically the accrual of the action, i.e., when all

the elements of the action, including injury or damages, have coalesced, resulting in a

legally cognizable claim. Id. A statute of repose, on the other hand, typically describes the

triggering event as something other than accrual.



       Because a statute of repose sets the triggering event as something other than

accrual, it can have the effect of barring a plaintiff's claim before it accrues, most typically

before the plaintiff even becomes aware of his or her injury. Id. (citing Cronin, 906 S.W.2d

at 913; Bruce, 894 S.W.2d at 276 ("A statute of repose is a substantive provision because

it expressly qualifies the right which the statute creates by barring a right of action even



                                                3
before the injury has occurred if the injury occurs subsequent to the prescribed time

period.")). As such, a statute of repose may preclude the substantive right of a party even

to bring suit. See Wyatt, 924 S.W.2d at 102.



            The “Tennessee Products Liability Act of 1978," T.C.A. § 29-28-101, et seq.,

applies to all actions seeking to recover for personal injuries, death, or property damage

caused by defective or unreasonably dangerous products. See Tenn. Code Ann. § 29-28-

102(5) and (6). The Act contains its own statute of repose:

                 Any action against a manufacturer or seller of a product for injury to
                 person or property caused by its defective or unreasonably dangerous
                 condition must be brought within the period fixed by §§ 28-3-104,
                 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions
                 to these provisions it must be brought within six (6) years of the date
                 of injury, in any event, the action must be brought within ten (10)
                 years from the date on which the product was first purchased for use
                 or consumption, or within one (1) year after the expiration of the
                 anticipated life of the product, whichever is the shorter, except in the
                 case of injury to minors whose action must be brought within a period
                 of one (1) year after attaining the age of majority, whichever occurs
                 sooner.

Tenn. Code Ann. § 29-28-103(a)(emphasis added).



        It is undisputed that Mr. Carter has not purchased cigarettes for use or consumption

since sometime between 1976 and 1978. Therefore, even though his lung cancer was not

discovered until 1996, the question is whether the present suit can be maintained in the

face of the ten-year limitation on such actions imposed by T.C.A. § 29-28-103(a). While

recognizing the limitation contained in T.C.A. § 29-28-103(a), Mr. Carter advances several

arguments in support of the proposition that the ten-year statute of repose should not

preclude his ability to bring suit. First, he contends that the defendant’s acts of fraudulent

concealment tolled the running of the statute.2 Second, he asserts that he had a vested

right in the common-law discovery rule, which was the law in Tennessee at the time he quit

smoking. Third, he argues that the Tennessee Legislature did not intend that the products

liability statute of repose be applied retroactively. Finally, he asserts that the Equal

Protection Clause of the United States Constitution and Article XI, Section 8 of the


        2
          Mr. Ca rter alleges that the defendant had knowledge of the addictive nature of nicotine and the
negative healt h risk s as soc iated with s mo king and k ept th is information from the public, thereby concealing
Mr. Carter’s cause of action.

                                                        4
Tennessee Constitution require that the asbestos exception to the statute of repose be

applied to cigarette injuries. We will consider each argument in turn.



                                                         I.

        Appellant first argues that the statute of repose should be tolled in the present case

due to the defendant’s fraudulent concealment of the harmful and addictive nature of

tobacco. However, the Appellant concedes that no court of this state has ever held that

fraudulent concealment will toll the running of the limitation period.



        The Court of Appeals for the Middle Section, in Damron v. Media General, Inc.,

recently addressed the question which we now confront. 1999 WL 1005476 (Tenn. Ct.

App., M.S., May 25, 1999). The Damron court noted that other statues of repose, including

those for medical malpractice, T.C.A. § 29-26-116(a)(3), the defective design or

construction of improvements to real estate, T.C.A. § 28-3-202, and for faulty survey,

T.C.A. § 28-3-114(a), include a tolling feature triggered by fraudulent concealment. Id. at

4. In holding that such an exception is not applicable to the products liability statute of

repose, the court found it persuasive that the statute itself did not include the exception,

and the omission appeared to be a deliberate act by the Legislature.3 Id. at 5. Assuming,

as we believe we must, that the legislature intentionally omitted a tolling feature for

fraudulent concealment, we concur with the Damron court that it is not our place to insert

such an exception. The Damron decision presents a thorough analysis of the present

issue. Although we are not bound by that decision, we find the Middle Section’s reasoning

to be sound, and agree that fraudulent concealment does not toll the ten-year statute of

repose applicable to product liability actions. None of the authorities to which the appellant

cites necessitates our concluding otherwise.




        3
          This argument is strengthened by the recognition that the statute of repose has twice been amended
to create exceptions for certain types of actions. Asbestos actions we re excepted by a 1979 amendment, and
actions arising from the use of silicon breast imp lants were excepted in 1993. These amendments lead us
to believe that had the T ennes see Le gislature inte nded the re to be an excep tion for frau dulent co ncealm ent,
such language would, at some time, have been inserted.

                                                         5
                                             II.

       Appellant also argues that he has a vested right in the application of the common-

law “discovery rule” for determining whether his action was timely filed. This argument is

based on the fact that the Products Liability Act, with the applicable statute of repose, was

enacted in 1978. Appellant argues that this Act altered the common law, which had used

the discovery rule for determining when a cause of action accrues. According to the

appellant, since the discovery rule was the law of this state at the time he quit smoking, it

should determine the timeliness of his claim. Under this line of reasoning, his cause of

action did not accrue until he discovered that he had lung cancer in 1996 and was,

therefore, timely filed in 1997.



       Article I, Section 20 of the Tennessee Constitution states that “no retrospective law,

or law impairing the obligations of contracts, shall be made.” The Tennessee Supreme

Court has defined “retrospective laws” as: “those which take away or impair vested rights

acquired under existing laws or create a new obligation, impose a new duty, or attach a

new disability in respect of transactions or considerations already passed.” Morris v.

Gross, 572 S.W.2d 902, 907 (Tenn. 1978)(emphasis added). A remedial right, however,

cannot be considered vested unless it is something more than an expectation based upon

the anticipated continuation of the present law. Landgraf v. USI Film Products, 511 U.S.

244, 269, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994).



       The fundamental flaw in the appellant’s argument is the fact that the prohibition

against retrospective laws only applies to actions which had accrued or been filed at the

time the new law went into effect. See Bowman v. A-Best Co., Inc., 960 S.W.2d 594

(Tenn. Ct. App. 1997)(rejecting a “vested rights” argument where the statute of repose had

the effect of barring the right and remedy before they accrued); State ex rel. McAllister v.

Goode, 968 S.W.2d 834 (Tenn. Ct. App. 1997)(holding that a mere expectation of a right

under prior law does not invoke the prohibition against retrospective laws). In other words,

a right becomes vested when the action has accrued or been filed, and, at that point, no

future law may take away that right.



                                             6
         Appellant cites the case of Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991), for the

proposition that where a statute alters the common law and resulted in deprivation of a

valuable common-law right, such a statute cannot constitutionally be applied retroactively.

The veracity of that proposition notwithstanding, the statement does not support Mr.

Carter’s position in the present case. The Hanover decision more correctly stands for the

proposition that the Legislature may not enact a law that takes away rights which have

already been exercised, such as through the filing of an action. See Hanover, 809 S.W.2d

at 896(“a statute which expressly applied to previously-accrued common-law causes of

action and purported to deprive the Court of its power to modify the common law, would

be unconstitutional”).



          In the present case, the right which Mr. Carter claims is no more than an expectation

based upon the anticipated continuation of the common-law discovery rule. Since his

action was not filed prior to the effective date of the statute, July 1, 1978, his expectation

does not rise the level of a vested right. The viability of the complaint filed in 1997 is,

therefore, properly determined under the ten-year statute of repose contained in the

Products Liability Act of 1978, as opposed to the common-law discovery rule.4



                                                               III.

         Finally, the appellant argues that the asbestos exception contained in T.C.A. § 29-

28-103(b) should be applied to cigarette related injuries. He contends that the Equal

Protection Clause of the Fourteenth Amendment and Article XI, Section 8 of the

Tennessee Constitution require that similarly situated individuals be treated alike, and

there is no rational basis for distinguishing between injuries caused by tobacco products

and those suffered due to asbestos exposure.



          The Fourteenth Amendment requirement that all persons similarly situated be

treated alike is not necessarily triggered by the presence of minute similarities. See Plyler


         4
           W e believe that this analysis is equally applicable to the appellant’s argument that the statute of
repose contained in the Produc ts Liability Act of 1978 should not be applied retroactively. Since his action was
filed after the e ffec tive da te of th e sta tute, th e app licatio n is no t retro active . A retr oac tive ap plicat ion w ould
only occu r where the statute purports to preclud e a previo usly filed action .

                                                                7
v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)(“the constitution

does not require things which are different in fact or opinion to be treated in law as though

they were the same.”). The Constitution does not require that “all evils of the same genus

be eradicated or none at all.” Railway Express Agency v. People of New York, 336 U.S.

106, 110, 69 S.Ct. 463, 466, 93 L.Ed. 564 (1955).



         The appellant concedes that rational basis review is the applicable standard in the

present case. Under rational basis review, if some reasonable basis can be found for the

classification, or if any state of facts may reasonably be conceived to justify it, the

classification will be upheld. Eye Clinic, P.C. v. Jackson-Madison County Gen. Hosp., 986

S.W.2d 565, 580 (Tenn. Ct. App. 1998)(citing Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn.

1997). This is a "lenient" standard under which a defendant may satisfy its burden merely

by demonstrating "any possible reason or justification for [the statute's] passage." Eye

Clinic, P.C., 986 S.W.2d at 580 (citing Exxon Corp. v. Eagerton, 462 U.S. 176, 195, 103

S.Ct. 2296, 2308, 76 L.Ed.2d 497 (1983); Kelley v. 3-M Co., 639 S.W.2d 437, 439 (Tenn.

1982).



             Under both the federal and state equal protection analyses, the rational basis

standard gives the legislature significant latitude in drawing classifications.5 A legislative

classification does not violate equal protection when it distinguishes persons as being

dissimilar upon some rational basis for the purpose of advancing the legitimate interests

of society. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1138 (6th Cir. 1986). In equal

protection challenges similar to the present case, various courts have upheld the asbestos

exception to the product liability statute of repose, finding a rational basis for the

classification. See Wyatt v. A-Best Products Co., 924 S.W.2d 98, 102 (Tenn. Ct. App.

1995)(holding that the exception of asbestos-related claims from the Tennessee Products



         5
          The cour ts of th is sta te ha ve co nsis tently analyz ed A rticle I, Sec tion 8 and A rticle XI, Section 8 of
the Tennessee Constitution under the sam e requirements im posed by the Equal Protection Clause of the
Fourtee nth Ame ndm ent to the U nited State s Con stitution. See, e.g., City of Tullahoma v. Bedford County,
938 S.W.2d 408, f. 2 at 411 (Tenn. 1997); Riggs v. Burson, 941 S.W .2d 44, 51 (Tenn . 1997); Tennessee
Sm all School Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn . 1993); Estrin v. Moss, 430 S.W.2d 345 (1968);
Sandford v. Pearson, 231 S.W .2d 336, 3 39 (195 0); Motlow v. State , 145 S.W . 177, 187 (1912).




                                                           8
Liability Act’s general statute of repose does not offend Article XI, Section 8 of the

Tennessee Constitution); Spence v. Miles Lab., Inc., 810 F. Supp. 952 (E.D. Tenn.

1992)(upholding the asbestos exception in the face of an equal protection challenge based

on the similarity between AIDS patients and asbestos victims); Kochins, 799 F.2d at 1138

(finding the exemption of asbestos-related injuries to satisfy rational basis review).



       As the Wyatt court noted, perhaps the Legislature’s purpose might have been better

served by a general exemption for all latent injury claims. See Wyatt, 924 S.W.2d at 106.

However, such is not the standard for our review of this issue. Accordingly, we find that the

asbestos exception to the products liability statute of repose satisfies rational basis review

and does not violate the equal protection guarantees found in either the Tennessee or

United States Constitutions.



                                        Conclusion

              For the forgoing reasons, we affirm the trial courts dismissal of the complaint

based on the ten-year statute of repose applicable to product liability actions. Costs of this

appeal are taxed to the appellant, Olanda Carter, for which execution may issue if

necessary.




                                                         HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




                                              9
