Outlining an Informative Speech:
Posted in Statute Of Limitations Geographical pride. A feeling of community. Being one of the locals. We all experience it to some degree. Sometimes you take it with you. Like wearing your favorite Roll Tide t-shirt while listening to jazz in New Orleans.
We defend our homes, our traditions, our customs. And, the differences hardly stop with food, music, and sports. Like, whether a state recognizes the discovery rule for triggering the running of a statute of limitations. For instance, both Alabama and Oregon have two-year statutes of limitations for products liability actions, but the statute starts to run in Alabama once a plaintiff is injured.
The difference can be considerable. Pulling an example completely at random, take a hip implant. In Alabama, the explant surgery was the trigger for the statute of limitations.
In Oregon, we need to know a whole lot more before we can decide whether plaintiff has made it to the starting line yet. Lebron jerseys mixing with Curry jerseys. Bourbon mixing with Sam Adams Lager. Cats and Dogs living together. You get the point.
Defendant filed a motion to dismiss plus cases on statute of limitations grounds, primarily arguing that regardless of the whether a state has a discovery rule, the statute started running at the time of the revision surgery.
Plaintiff countered similarly to the contrary — that the revision surgery never started the statute running. The court drew a fairly bright line distinction down the middle — and right along the discovery rule.
The reason the discovery rule was so important to the court was that applying the discovery rule requires a factual inquiry beyond the face of the complaint and therefore beyond the confines of a motion to dismiss.
Only four claims in discovery rule states were exempt from the above ruling.
In each of those cases, the court used the latest possible date for plaintiffs to have discovered their cause of action — the date of the product recall — and found that even using that date, plaintiffs had filed outside the applicable statute of limitations period. Those cases were dismissed.
That left cases in four states that do not recognize the discovery rule, at least in this context.
Alabama, Idaho, and Michigan have not adopted the rule and the cause of action accrues at the time of injury. While there are variations among the states, the basic concept is that if the defendant fraudulently conceals the existence of a cause of action, the limitations period is tolled.
Here plaintiffs argued that defendant failed to disclose that it had lost its PMA status and failed to warn that the device was defective and unsafe. But those allegations were either untrue or preempted:ACTUAL SPEECH INTRODUCTION I. An athlete is a person who is trained or skilled in exercises, sports, or games requiring physical strength, agility, or stamina.
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