Defense Strategies for Winning on the Statute of Limitations

Reviewing and Responding to the Complaint

• Verify the applicable statutes of limitations and repose in your jurisdiction.
• Consider all of the plaintiff’s causes of action and alleged injuries. A plaintiff who brings multiple causes of action might be subject to several different limitations periods. A motion that knocks out only some of the plaintiff’s claims can still be extremely useful, both for winning the case and for establishing a favorable settlement position.
• Preserve the defense in the answer. In most jurisdictions, including federal court, the statute of limitations is an affirmative defense that is waived if not asserted in the answer.
• Do not discount the possibility of a motion to dismiss, especially in federal court. Under the federal pleading standard, a plaintiff cannot merely claim that a tolling doctrine applies; rather, the complaint will be dismissed if the plaintiff does not plead facts plausibly supporting all elements of the claimed doctrine.

Tailoring the Discovery Plan

• Research your jurisdiction’s applicable law on the statute of limitations and any tolling doctrine asserted by the plaintiff. Doing the research early in the case is necessary to guide your discovery plan.
  
  When a cause of action accrues and when the discovery rule or a tolling doctrine applies vary from state to state and from claim to claim. Generally speaking, however, for cases alleging any type of personal injury, the key inquiry turns on when the plaintiff discovered, or should have discovered in the exercise of reasonable diligence, the fact and cause of his or her injury.

• Early in the case, request or subpoena written records that could be relevant to establishing the plaintiff’s knowledge of his or her condition at various points in time.
• Carefully craft deposition questions. Well-prepared witnesses often try to create fact issues when presented with questions aimed at the statute of limitations. A questioner therefore can try to approach the topic more indirectly and carefully place the questions throughout the examination so as to avoid tipping off the plaintiff.
  
  Alternatively, less-prepared witnesses are often eager to shore up their damages claims by emphasizing that they “always knew” that your client was culpable. A questioner therefore might give the witness space to offer such testimony, which can be later used to defeat tolling doctrines.

• Conduct expert discovery keeping in mind the statute of limitations. Expert reports and depositions can reveal important information as to when the alleged injury first manifested or when the plaintiff became aware of his or her diagnosis.

Moving for Summary Judgment

• Do not delay in filing for summary judgment. Some jurisdictions hold that a statute of limitations defense can be waived by unreasonable delay between asserting the defense in the answer and filing a dispositive motion.
• Frame the issue as being a matter of law. Even though issues regarding when the plaintiff first discovered his or her injury and whether the plaintiff exercised “reasonable” diligence are often questions of fact, a motion for summary judgment can still be successful when it argues that, even if true, the plaintiff’s claimed actions and knowledge cannot satisfy the discovery rule or any tolling doctrine.

Preserving the Defense in the Final Pretrial Order under Federal Rule of Civil Procedure 16

• In federal court, the statute of limitations defense, like other affirmative defenses, is forfeited if it is not included in the final pretrial order, even if the defense was asserted in the answer.

Presenting the Defense During Trial

• Tread carefully when arguing the statute of limitations to the jury. It is easy to lose credibility with the jury when asserting a statute of limitations defense. For example, simultaneously arguing both that your client’s product is not defective and that the plaintiff should have known that it was defective long before filing suit typically does not sit well with the jury.
• Consequently, consider focusing efforts on pursuing a judgment as a matter of law. During trial, elicit testimony and introduce evidence necessary to prove the defense—but perhaps do not emphasize the statute of limitations in the opening or closing. The defense can then be asserted in a motion for a judgment as a matter of law (and included in an appeal) while minimizing the risk of losing credibility with the jury in the event that the motion is denied.

Whitney Frazier Watt is a member and Robin E. McGuffin is an associate at Stites & Harbison, PLLC, in Louisville, Kentucky.

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