Per-Unit Statute of Repose Under OCGA § 51-1-11(b)(2): Georgia Supreme Court Holds Repose Runs From the First Sale of Each Unit, Not From a Plaintiff’s Earliest Purchase

Introduction

In Burroughs v. Strength of Nature Global, LLC and Burroughs v. L’Oréal USA, Inc. (consolidated), the Supreme Court of Georgia addressed how Georgia’s ten-year statute of repose for strict products liability, OCGA § 51-1-11(b)(2), applies when a plaintiff alleges injury caused by repeated purchases and uses of the same type of product over many years. The plaintiff, Kiara Burroughs, used various chemical hair-relaxer products manufactured by Strength of Nature and L’Oréal from 1995 to 2014 and was diagnosed with uterine fibroids in 2018. She sued in October 2022, alleging that endocrine-disrupting chemicals in the relaxers rendered them defective when sold and proximately caused her injury.

The Court of Appeals had affirmed dismissal of her strict liability claims under the statute of repose, reasoning that the repose clock began with the earliest product sale to her by each manufacturer (1995 for Strength of Nature; 2003 for L’Oréal), making her 2022 lawsuit untimely. The Supreme Court granted review to decide whether, in cases involving multiple sales of consumable products to the same end user, the statute of repose runs from the plaintiff’s earliest purchase or instead applies separately to each discrete unit sold as new.

Justice Pinson, writing for a unanimous Court, reversed in part and announced a significant rule of statutory construction: OCGA § 51-1-11(b)(2) operates on a per-unit basis. The opinion preserves Burroughs’s strict liability claims to the extent they are tethered to units sold as new within ten years before suit, while confirming that claims tied to units sold more than ten years earlier are extinguished by repose. A concurrence by Justice Bethel underscores an unresolved defense issue left for another day.

Summary of the Opinion

The key holding: OCGA § 51-1-11(b)(2) creates a ten-year statute of repose that applies to “the personal property” on a per-unit basis. For each unit sold as new to the intended end user, a separate repose clock runs from that unit’s first sale for use or consumption. The Court rejected the view that all units a plaintiff purchased over time should be treated as a single group with a repose clock triggered by the earliest purchase.
Pleading-stage effect: Because Burroughs alleged she used units sold within ten years of filing suit (i.e., after October 27, 2012), her strict liability claim cannot be dismissed at the pleadings stage on repose grounds. She may attempt to prove that the condition of those in-window units proximately caused her injury.
Out-of-window units: Claims tied to units sold more than ten years before filing “simply do not exist” under the statute of repose and are barred.
Open question (not decided): Whether a defendant can defeat a strict liability claim even as to in-window units by proving the injury would not have occurred “but for” the causative contribution of out-of-window units (the “combination” or “mixed-causation” affirmative defense) was expressly reserved. Justice Bethel’s concurrence expresses skepticism that out-of-window units could extinguish otherwise viable claims for in-window units.
Scope: The Court’s decision addresses only the strict liability claims under OCGA § 51-1-11(b)(1). Negligence and fraud claims remain pending; the Court of Appeals’ affirmance of the trial court’s refusal to dismiss those claims was not disturbed.

Detailed Analysis

Statutory Framework

OCGA § 51-1-11(b)(1) imposes strict liability on manufacturers who sell “any personal property” as new when that property, “when sold,” was not merchantable or reasonably suited to its intended use and its defective condition “when sold” proximately caused the plaintiff’s injury. Subsection (b)(2) sets an “outside limit on the bringing of lawsuits”: “No action shall be commenced… with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” Statutes of repose are not discovery rules; after repose expires, the cause of action does not exist, regardless of when the injury accrues or is discovered.

The Court’s Textual Approach

The Court reaffirmed and extended its prior textual construction of the key phrase “first sale for use or consumption” from Campbell v. Altec Industries, Inc., 288 Ga. 535 (2011), and Pafford v. Biomet, 264 Ga. 540 (1994). “First sale for use or consumption” means the sale of a product “as new” to the intended end user (not intermediate sales in the distribution chain and not subsequent resales as used). The opinion reads the phrase identically across contexts to avoid making the statute a “chameleon,” relying on interpretive guidance from United States v. Santos, 553 U.S. 507 (2008); Clark v. Martinez, 543 U.S. 371 (2005); and United States v. Nippon Paper Industries Co., 109 F.3d 1 (1st Cir. 1997).

From that fixed meaning, the Court reasoned that “the personal property causing or otherwise bringing about the injury” refers to a discrete unit alleged to have been sold as new to an intended end user. Because “first sale for use or consumption” identifies the triggering sale in the chain for each unit, there is no textual basis to reinterpret “first sale” to select, from among multiple units sold at different times to the same consumer, the earliest purchase as the trigger for all units collectively.

Precedents Cited and Their Role

Campbell v. Altec Industries, Inc., 288 Ga. 535 (2011) — Clarified that the repose period starts at the “end sale of the product as new” to the intended end user, not when the product last left the manufacturer’s hands or upon any resale. Burroughs builds on Campbell by specifying that this logic applies unit-by-unit where multiple units are sold to the same end user over time.
Pafford v. Biomet, Inc., 264 Ga. 540 (1994) — Introduced the “intended end user” concept that anchors the point of sale for starting the repose period; relied on here to emphasize the consumer-facing sale as the operative trigger.
Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249 (2002) — Reiterated that statutes of repose set an absolute outer limit irrespective of discovery or accrual; supports the Court’s emphasis that out-of-window units are extinguished.
Norman v. Xytex Corp., 310 Ga. 127 (2020); Milliron v. Antonakis, 319 Ga. 616 (2024) — Establish the liberal pleadings standard and the rule that, on a motion to dismiss, allegations are accepted as true and dismissal is improper unless the plaintiff could not possibly introduce evidence entitling her to relief.
United States v. Santos, Clark v. Martinez, and Nippon Paper — Invoked for the interpretive principle that statutory terms should not shift meaning opportunistically; the Court used these to reject the Court of Appeals’ “group-of-units” theory that repurposed “first sale” to do new work.
Illustrative exposure cases cited by the Court: PTI Royston LLC v. Eubanks, 360 Ga. App. 263 (2021); Hadley v. AstraZeneca Pharms., PLC (S.D. Ill. 2018); Daughetee v. Chr. Hansen, Inc., 960 F. Supp. 2d 849 (N.D. Iowa 2013). These underscore the variety of injury theories arising from repeated use or exposure over time.

Rejection of the “Group of Units” Theory

The manufacturers and the Court of Appeals argued that when multiple units “bring about” an injury, “the personal property” in § 51-1-11(b)(2) should be read as the group of units, and the “first sale” should be the earliest sale in that series to the plaintiff. The Supreme Court rejected that construction for several reasons:

Textually, “first sale for use or consumption” already has a settled function: it identifies, for a given product, the sale as new to the intended end user (as opposed to a resale) that starts that product’s repose clock. It cannot simultaneously select, across multiple products sold at different times to the same person, the earliest sale to trigger a single clock.
Nothing in the statute specifies how to aggregate distinct units, and no other textual hook supplies a rule for choosing a single triggering sale in a chain of separate unit sales.
Construing “personal property” to mean “any single unit alleged to have been sold as new to an intended end user” harmonizes subsections (b)(1) and (b)(2): liability attaches to the condition of the unit “when sold;” repose runs from that unit’s first sale.

Accordingly, the Court held that OCGA § 51-1-11(b)(2) “is applied on a per-unit basis,” such that each unit has its own ten-year repose period commencing at that unit’s first sale as new to the intended end user.

Pleading and Proof Consequences

The Court acknowledged that under a per-unit regime, proof can be “a tricky undertaking” in cumulative-exposure or repeated-use cases. But that complexity does not justify dismissal at the pleadings stage. Burroughs alleged use of units within ten years of suit and alleged those units caused her injury. At this stage, Georgia’s liberal notice pleading does not require her to identify the specific containers or assert a detailed causation theory tied to particular units; rather, it is enough that she could possibly introduce evidence showing that the condition of in-window units proximately caused her injury without relying on any out-of-window unit’s causative contribution.

The Court emphasized:

Claims as to out-of-window units are extinguished and cannot be relied upon as independent bases of liability.
Viable claims remain for in-window units; the plaintiff bears the burden to prove that the condition of those in-window units when sold was the proximate cause of injury.
At the motion-to-dismiss stage, the complaint’s framework suffices if it supports the possibility of such proof; demanding unit-specific allegations exceeds Georgia’s pleading standard.

The Open “Combination” Defense (Footnote 6) and the Concurrence

The Court expressly reserved whether a defendant can defeat a strict liability claim even as to in-window units by proving that the injury would not have occurred but for the causative contribution of out-of-window units. This hypothetical defense tests the boundary between:

Per-unit repose (which preserves claims based on in-window units), and
The statutory command that “no action shall be commenced” after ten years from the first sale of “the personal property causing or otherwise bringing about the injury,” which arguably suggests that if out-of-window units are a necessary causal component, liability should not proceed at all.

The Court noted textual tension and floated the possibility that a legislative solution might be superior for cumulative-exposure scenarios not expressly anticipated by the statute’s language. Justice Bethel’s concurrence, joined by the Chief Justice and three Justices, signals skepticism that expiration of repose for one unit can extinguish a claim based on a different unit sold within the repose period, even if both are of the same type. While not dispositive, the concurrence hints that future resolution may favor preserving in-window claims notwithstanding out-of-window contributions, consistent with the per-unit framework adopted here.

Impact and Practical Implications

For Product Liability Litigation Involving Repeated Use or Exposure

Survival of claims for recent purchases: Plaintiffs who repeatedly used consumable products (cosmetics, pharmaceuticals, household chemicals, food flavorings, etc.) retain strict liability claims to the extent they can tie injury to units sold as new within ten years of filing suit.
Extinguishment of older-unit claims: Claims premised on units purchased more than ten years before filing are barred outright; those units cannot serve as independent bases of liability and may not be relied upon if the “combination” defense is ultimately recognized.
Proof challenges move to merits: The battleground shifts from pleading to merits: specific causation must be linked to in-window units. Expect robust expert testimony regarding disease latency, dose-response, and whether in-window exposure alone is sufficient to cause or aggravate injury.
Discovery focus: Parties should expect discovery targeting product identification, purchase dates, lot numbers, formulation changes, concentrations of allegedly harmful constituents, and application frequencies during the in-window period.

For Plaintiffs

Allege, and be prepared to prove, exposure to units sold within ten years of filing, and develop expert opinions that the condition of those in-window units proximately caused the injury (including aggravation or acceleration theories).
Consider pleading theories that do not require out-of-window units as necessary causal components, to avoid the risk of an eventual “combination” defense.
Track changes in product formulation and warnings during the in-window period; evidence of defect “when sold” is unit-specific.

For Manufacturers and Sellers

Per-unit repose offers a strong partial shield: document sale dates and distribution records to identify out-of-window units.
Develop “combination” causation defenses in appropriate cases: argue that the injury could not have occurred but for cumulative exposure including out-of-window units (subject to the open question reserved by the Court and the skepticism reflected in the concurrence).
Expect more nuanced expert battles on whether in-window exposure, standing alone, can cause the claimed injury.

For Trial Courts

At the pleading stage, dismiss only claims that necessarily rely exclusively on out-of-window units; allow discovery where the complaint plausibly encompasses in-window units.
At summary judgment and trial, require unit-specific proof connecting defect “when sold” and proximate causation to in-window units.
Be prepared to confront the reserved “combination” defense if defendants show that out-of-window exposure is a necessary causal precondition.

Policy Signals and Potential Legislative Response

The Court notes that § 51-1-11(b)(2) does not neatly address cumulative exposure theories, suggesting the General Assembly may wish to clarify repose treatment for long-latency injuries involving repeated exposures.
Any legislative reform would need to balance repose’s certainty with fairness in cumulative exposure contexts, potentially by specifying how to treat aggregated exposures or by creating carve-outs for particular toxic torts.

Complex Concepts Simplified

Statute of repose vs. statute of limitations: A statute of limitations sets a deadline based on when a claim accrues or is discovered. A statute of repose sets an absolute outer boundary measured from a specified event (here, the unit’s first sale as new to the end user). After repose runs, the cause of action does not exist, even if the plaintiff could not yet have discovered the injury.
“First sale for use or consumption”: The sale of a product “as new” to the person intended actually to use it, not a sale to distributors or resellers, and not a later resale as used.
“Personal property causing or otherwise bringing about the injury”: In this decision, it means each discrete product unit alleged to be causative, not the entire set of units bought over time.
“Condition when sold” and “merchantable and reasonably suited”: For strict liability under OCGA § 51-1-11(b)(1), the product must have been defective at the time of sale and that defect must be the proximate cause of the injury.
Proximate cause in repeated-use cases: Plaintiffs must show that the in-window unit(s) materially caused, accelerated, or aggravated the injury; purely speculative or cumulative-only theories that depend on barred units may be vulnerable.

Practice-Oriented Checklist

Identify each unit sold “as new” to the plaintiff and its sale date; segregate in-window (≤10 years before filing) from out-of-window units.
For in-window units, collect evidence of defect “when sold” (formulation, design, contaminants, warnings) and usage details (frequency, duration, application method).
Develop expert causation analyses isolating the effect of in-window exposure; consider aggravation/acceleration and dose-response opinions.
Anticipate and counter a potential “combination” defense by articulating theories that do not require out-of-window exposure as a necessary causal component.
Use discovery to map formulation changes and lot-specific differences during the in-window period.

Key Takeaways

Georgia’s products-liability statute of repose under OCGA § 51-1-11(b)(2) runs on a per-unit basis: each unit sold as new to an intended end user starts its own ten-year clock.
A plaintiff’s earliest purchase does not bar claims tied to later, in-window units; conversely, claims tied to out-of-window units are extinguished.
Pleading standards are liberal: a plaintiff need not pinpoint the specific container(s) at the complaint stage, so long as the allegations plausibly encompass in-window units and causation.
An important question remains open: whether defendants can defeat in-window claims by proving the injury required out-of-window units. The concurrence expresses doubt, and future cases or legislative action may address this tension.
This decision will profoundly affect toxic tort and repeated-use product litigation in Georgia, shifting the focus to unit-specific proof and expert causation tied to the ten-year window.

Conclusion

Burroughs establishes a clear, administrable rule: the ten-year statute of repose in OCGA § 51-1-11(b)(2) is measured per unit, starting at each unit’s first sale as new to the intended end user. By anchoring its reasoning in the statute’s text and its own precedents, the Supreme Court of Georgia rejected a “group-of-units” approach that would have extinguished claims based solely on a plaintiff’s earliest purchase. The ruling preserves claims legitimately tied to recent sales while respecting the repose bar for older units. Although the Court leaves open the complex question of mixed causation across in-window and out-of-window units, its per-unit framework provides crucial guidance for courts and litigants navigating cumulative exposure allegations. In the broader legal landscape, the decision will shape pleading, discovery, and expert practice in Georgia product cases and invites legislative attention to cumulative-exposure scenarios not squarely contemplated by the existing statutory text.