Mercado v. Baker , 117 Idaho 777 ( 1990 )

BISTLINE, Justice,

dissenting.

I agree with the majority that the affidavit of R. Bruce Hopkins did not constitute the clear and convincing evidence necessary to rebut the statutory presumption operating in favor of the defendant. However, for the reasons stated in my dissent in Olsen v. Freeman, 117 Idaho 706, 791 P.2d 1285, I adhere to the view that the clear and convincing evidence burden imposed on plaintiffs by Idaho Code § 6-1403 is so onerous that it constitutes a violation of the open courts provision of the Idaho Constitution. For that reason the summary judgment should be reversed.

It is also necessary to reiterate that, even assuming arguendo that the statute is constitutional, it is inappropriately applied to a failure to warn claim. As I explained in Olsen, the duty to warn is an ongoing duty which may arise even after the “useful safe life” of a product has expired. A statute of repose based on the finite concept of “useful safe life” is therefore inapplicable to a claim for failure to warn. Mercado asserted such a claim, and as to that claim, at least, the summary judgment against her should be reversed.