Statute of Limitations & Amendments

Question 1

General Amendment Rule

Answer 1

A pleader may amend once as of right up to the pretrial order, or if no pretrial order is entered then to the start of trial

Question 2

Relation Back for New Claims

Answer 2

An amended pleading adding new claims relates back to the original filing date if the new claim derives from the same transaction or occurrence as the original claim

Question 3

Relation Back for New Parties

Answer 3

An amendment adding new parties relates back to the original filing if:
1) the claim against the defendant arises from the same conduct;
2) the defendant had notice of the suit such that they will not be prejudiced in maintaining their defense; and
3) the defendant knew or should have known that, but for a mistake, they would have originally been named as a defendant

KNOWLEDGE DIFFERENCE – the defendant must have acquired that knowledge before the statute of limitations ran rather than within the period for service of process

Question 4

Statute of limitations

Answer 4

Generally, the statute of limitations starts to run from accrual of the claim

EXCEPTION – there is a discovery rule that states when a plaintiff’s bodily injury develops over an extended period, the cause of action does not accuse, and the statute of limitations does not begin to run until he discovers (or through the exercise of reasonable diligence should have discovered)

Question 5

Statute of Repose

Answer 5

A statute of repose is an absolute limit on the filing of claims that runs from the date of accrual not discovery

MEDICAL MALPRACTICE STATUTE OF REPOSE – a medical malpractice action must be filed within 5 years of the occurrence, regardless of discovery. However, that 5 year period of repose starts to run at age 5 if the plaintiff was younger than 5 when accrual occurred.

Question 6

One year SOL

Answer 6

Defamation claims
foreign object medical malpractice claims (starting at discovery)

Question 7

Two Year SOL

Answer 7

personal injury
all other medical malpractice claims

Question 8

Four Year SOL

Answer 8

property damage
trespass to title
oral or implied contracts
contracts for the sale of goods

Question 9

Six Year SOL

Answer 9

written contracts

Question 10

Eight Year SOL

Answer 10

A claim based on a deficient survey, plat, plan, design, specification, supervision, or observation of construction

NOTE – subject to a ten year statute of repose

Question 11

Ten Year SOL

Answer 11

Product liability action, which runs from the date the plaintiff first used or consumed the product

Question 12

Twenty Year SOL

Answer 12

Action on a contract under seal