Statue Of Limitations

[Garadyn]

In a personal injury case if the statue of limitations of 2 years has passed can the plantiff's lawyer still try to pursue discovery? There have been a motion for summary judgement filed for the defendants and the sol is only one(of many) arguments for the defendants.(CA case)

ANSWER: Sherri:

The two year statue of limitations for personal injury cases in CA that you refer to prevents a plaintiff from bringing(commencing)an action after the state of limitations has passed.  There are some exceptions to that rule that "toll" the statute of limitations.  That is to stop counting the days for certain permitted reasons.  As an example, an active duty service member does not lose his right to bring a law suit by being stationed outside the jurisdiction of the court.  There are other exceptions, and you should check with an attorney to see if there are any that apply to your particular situation.

Discovery is a part of a law suit.  The statute of limitations does not prevent the discovery process.  In fact, the discovery process may be necessary to prove or disprove a statute of limitations situation.

David Demanski

---------- FOLLOW-UP ----------

This is a personal injury case not subject to any exceptions. The 2 year statue was up in 3/06 we were brought in the case in 7/06 and 8/06. We feel once the 2 yrs. are up the plaintiffs' case is barred and we have to be taken out of the case. The atty. is now asking for discovery from us. The original suit was filed in 3/05. The atty. is just trying to go after the money and he is grasping at straws! We are trying to figure out how we can stop this without going through a discovery process since we should not be in this case at all. We have already spent over $20,000.00 on a case that should be dismissed!

ANSWER: Sherri:

I do not know how you could have spent 20K defending a case if you haven't gotten into discovery.  There are obviously a lot more facts out there.

It sounds like a lawsuit was filed prior to the expiration of the statute, and that you were added as a defendant later in the case, and that the statute of limitations had passed before you were added to the case.  That is not uncommon.  

I have know way of knowing whether or not the plaintiff has a valid case.  I do know that any good attorney is going to do all they can to get their client as large a judgment as possible, and to get as collectable a judgment as possible.

When a lawsuit is filed, the plaintiff may learn via discovery that there are other potential defendants.  When the initial lawsuit is filed, those yet to be identified defendants are included in the law suit as "Does" and they are numbered Doe 1 through Doe 20 or more.  The legal theory is that the defendant has be sued, when their name is learned the Doe defendant is given a new name in numerical order.  For example, Doe 1 becomes Robert Jackson and Doe 2 becomes Acme Services, etc.

The original pleading, in amended via a Doe amendment.  The doe amendment can be challenged.  Does may be added after a statute of limitations has run under several legal theories.  The most common being the Relation Back Doctrine. The most common reason to add a Doe defendant is that the plaintiff has found someone that has more money.  If more than one person is determined to have some amount of liability, collectability is the plaintiff attorneys main concern.

It is malpractice for an attorney not to name all potential defendants, that includes those that are determine to have some level of liability after a law suit has been filed, and after the statute of limitations has passed.

One of the more common defenses against being added to a lawsuit as a Doe defendant is to demonstrate that the plaintiff knew, or should have known, that there was liability before the statute of limitation ran and that the plaintiff cannot now add you to the lawsuit.

A Doe defendant is always permitted when the statute of limitations has not run because to disallow the Doe amendment would be encourage an additional lawsuit be filed.  When the statute of limitations has run, a knew lawsuit cannot be filed, a Doe amendment is the only way to bring in the additional defendant.  It is my guess that you will have to respond to at least some discovery.

If the lawsuit is frivolous, it is an unfortunate situation.  If the lawsuit has merit, and you have some amount of liability, and your only defense is that you were not sued timely, you may have a problem.  The law does not favor permitting someone that is liable for another’s injury to avoid responsibility because the plaintiff was not aware of all that contributed to their injury.  The law also does not favor someone that simply sat on their rights and did nothing when they knew, or should have known, those in some way responsible for their injury.

Good luck Sherri  I hope this response addresses some of your concerns.

David Demanski

ps  This response is based on the very limited facts provided.  The response is based on general circumstances and is in no way intend to replace a legal consult with a qualified attorney that has had the time to analyze all the facts pertaining to your case and to render a complete legal opinion based on all the facts that pertain to your situation.  If you have not already sought legal counsel on this matter it is recommended that you do so.  I recommend that you consult an experienced attorney so that you can be informed of all your legal rights and upon such, make an educated decision.

---------- FOLLOW-UP ----------

We were brought in the case as "Doe Defendants" even though the plaintiff's atty. knew who we were from the begining, thus the sol violation and also, we have no liability!! The plaintiff's atty. is trying to follow the money and drag us through the mud along with this case. The date of the accident was 3/04(this was not an auto accident). He did'nt bring us in until 9/06. I just don't understand why this isn't over for us. I believe our atty. is just using us for a payday and the lawsuit is frivolous, we are not liable our neighbors are.

[Durand]

Sherri:

Sorry Sherri there is no magic answer for you.  Anyone can sue anyone.  The determination of liability is a matter of fact.  Facts are decided by a jury.  Liability can also be in degrees, if a person is found to be 1% liable they can be held to pay what a jury decides is their portion of a harm.

If you are a home owner, why isn't there an insurance company defending you.  Have you contacted your homeowner insurance carrier.  Homeowners insurance covers a lot more than most people realize.  If you have not contacted your insurance carrier, for some reason like you don't want your premiums to go up, then I believe you have made a mistake.  We have insurance for situations like the one you are in.  If you do not have insurance coverage, you are forced to defend yourself.  Don't make the decision of whether or not your insurance covers you, that is their job.

As far as being a Doe defendant, a plaintiff can “know” of you from the start, but not know that you have liability until much later.  I am not saying that is what happened, but in order to get you into the case, all the plaintiff would have to do is present a plausible reason to the court as to why they just learned of you and to have a theory of liability.  After that everything is a matter of fact, not a matter of law.  And, as I have already said, facts are determined by a jury.  I can see that you are frustrated because you believe that you have been unfairly and wrongly brought into a lawsuit.  If that is so, it appears from what you have stated that you will need to defend yourself.  The plaintiff has the burden of proof, so they have to demonstrate to a jury,(or the judge if it is a bench trial) that it is more likely than not that you bare some amount of responsibility for their injuries.