Wright v. Robinson, 426 S.E.2d 870 (Ga. 1993). The only other state court case relied upon by the district court, Bruce v. Hamilton, 894 S.W.2d 274 (Tenn.Ct.App. 1993), was later contradicted by the Tennessee Supreme Court in Cronin, supra, on precisely the same issue. Nonetheless, the district court found that the Illinois Supreme Court would reject the reasoning of Limer, an Illinois appellate court case, and adopt the reasoning of Wright, the only state supreme court (Georgia) to reject the applicability of a savings statute to a statute of repose.

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).

The former 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 "nullif[y] both the remedy and the right." Bruce v.Hamilton, 894 S.W.2d 274, 276 (Tenn.App. 1993); Via v.General Elec. Co., 799 F. Supp. 837, 839 (W.D. Tenn. 1992). Generally speaking, 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. 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.

The Defendants' remaining, and perhaps strongest, argument for us to recede from our holding in Adkins is that subsequent decisions in Tennessee have distinguished between statutes of limitations and statutes of repose and have concluded that section 29-26-116 falls within the latter category. See Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995); Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn. App. 1993), overruled on other grounds by Cronin v. Howe, 906 S.W.2d 910, 914 n. 3 (Tenn. 1995). In Cronin v. Howe, the Supreme Court of Tennessee explained that:

The former 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 "nullif[y] both the remedy and the right." Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn. App. 1993); Via v. General Elec. Co., 799 F. Supp. 837, 839 (W.D.Tenn. 1992). Generally speaking, 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.

Hayes v. Gen. Motors Corp., No. 95–5713, 1996 WL 452916, at *4 (6th Cir. Aug. 8, 1996) (per curiam) (“The running of a statute of limitations nullifies a party's remedy, and, as such, it is a procedural mechanism and may be waived.” (quoting Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn.Ct.App.1993))). “A statute of limitation may be waived by express contract or by necessary implications, or its benefits may be lost by conduct invoking the established principles of estoppel in pais.”

Even if Defendant had not relied on the statute of repose in its answer, it is unlikely the statute of repose could be waived because it is a matter of substantive law, unlike a statute of limitations, which is procedural. Cronin, 906 S.W.2d at 913 (citing Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn.App. 1993)); Hayes v. GMC, No. 95-5713, 1996 WL 452916, 1996 U.S. App. LEXIS 22345, *12 (6th Cir. Aug. 8, 1996); cf. Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895, 903 (6th Cir. 2002) (construing Michigan's similar statute of repose). In 2006, Tenn. R. Civ. P. 8.03 was amended to add the statute of repose as an affirmative defense that must be pleaded in an answer.

Because a statute of repose is substantive it relates to the jurisdiction of the court and "any failure to commence the action within the applicable time period extinguishes the right itself and divests the . . . court of any subject matter jurisdiction which it might otherwise have." 894 S.W.2d 274, 275 (1993). The Bruce court went on to observe that the Tennessee savings statute provided for a de novo action, and concluded that a plaintiff cannot bring a new suit on a nonexistent cause of action.

Defendant argues that the running of the statute of repose deprives the court of subject matter jurisdiction and, thus, the statute of repose is not an affirmative defense that can be waived. Defendant relies on Bruce v. Hamilton, 894 S.W.2d 274 (Tenn.Ct.App.1993), in which the Court of Appeals dismissed a health care liability lawsuit because it was filed outside of the three-year statute of repose. In Bruce, the Court of Appeals explained that the statute of repose is “a substantive provision” that “extinguishes the right itself and divests the ... court of any subject matter jurisdiction which it might otherwise have.”

That distinction has prompted courts to hold that statutes of repose are substantive and extinguish both the right and the remedy, while statutes of limitation are merely procedural, extinguishing only the remedy. See Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn. App. 1993); Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d at 421; Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993); Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987); Wayne v. T.V.A., 730 F.2d 392, 401 (5th Cir. 1984) (discussing Tennessee's products liability statute of repose); Via v. General Elec. Co., 799 F. Supp. 837 (W.D.Tenn. 1992) (discussing Tennessee's medical malpractice statute of repose); Myers v. Hayes Intern. Corp., 701 F. Supp. 618 (M.D.Tenn.