Beating SOLs: Do you have a research plan?

The statute of limitations landscape can seem like a maze of complex rules and exceptions. In a continuing legal education seminar for the Ohio State Bar Association, Jonathan Hilton of Hilton Parker LLC shared valuable insights on how attorneys can navigate these challenges to protect their clients’ interests. Success in this area requires meticulous research and creative legal thinking – there’s rarely a simple answer, but diligent investigation often reveals promising avenues for preserving claims.

If you are a plaintiff’s attorney with a tough SOL issue, you need a research plan that focuses on different theories of when the tort accrued; various tolling theories; and all your different choice of law options – including figuring out the differences between federal versus state law, and the differences among the various state laws involved.

First Steps: The Difference Between Accrual and Tolling

Before diving into specific strategies, it’s essential to understand the fundamental difference between accrual dates and tolling theories. This distinction can dramatically affect your litigation strategy and burden of proof.

Accrual refers to when the statute of limitations begins running in the first place. Importantly, because statutes of limitation are affirmative defenses, the burden falls on the defendant to prove when a claim accrued. This makes arguing for a later accrual date strategically advantageous for the plaintiff compared to presenting tolling arguments.

In contrast, tolling pauses or stops the clock on a claim that has already accrued. Common tolling grounds include:

  • Minority
  • Insanity
  • Imprisonment
  • Discovery rule
  • Bankruptcy
  • Defendant’s absence from the jurisdiction
  • Class action / American Pipe tolling
  • Fraudulent concealment

The critical difference? The plaintiff bears the burden of proving tolling applies. This procedural distinction, as emphasized in Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001), should guide your initial strategic approach. As the Sixth Circuit wrote in Campbell, “Because the statute of limitations is an affirmative defense, the burden is on the defendant to show that the statute of limitations has run. If the defendant meets this requirement then the burden shifts to the plaintiff to establish an exception to the statute of limitations.”

Federal Statutes, Tolling, and the “Blackletter Rule”

Let’s talk about a key difference between federal law and statute law. State law statutes of limitation typically allow for tolling – either under well-developed state case law or under statutes passed by state legislatures. But with federal statutory causes of action, it’s a different matter.

Understanding federal statutes of limitation requires navigating a complex web of statutory provisions and judicial interpretations. The traditional “blackletter rule” states that federal statutes “run against all persons, even those under a disability, unless the statute expressly provides otherwise.” Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994)).

However, the reality is more nuanced than this seemingly rigid rule suggests. Courts have created exceptions when:

  • The defendant caused the disability
  • The statute serves remedial purposes
  • Exceptional circumstances exist

For example, in Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 1246 (S.D. Ohio 1984), the court determined it could create a federal common law rule allowing tolling during the plaintiff’s hospitalization in an Age Discrimination in Employment Act case. Similarly, Hardy v. Potter, 191 F. Supp. 2d 873, 879 (E.D. Mich. 2002) permitted tolling in a Title VII case where the government had adjudged the plaintiff as having dementia.

When researching federal statutes, consider:

  1. Whether the statute contains its own limitations period or borrows from state law
  2. For post-1990 statutes, the default four-year limitations period under 28 U.S.C. § 1658(a)
  3. Whether the statute is remedial in nature
  4. The availability of equitable tolling
  5. Potential fraudulent concealment arguments
  6. The possibility of exceptional circumstances

A key development in federal law comes from Rotkiske v. Klemm, 140 S. Ct. 355, 359 (2019), where the Supreme Court addressed the interplay between statutory text and equitable doctrines. While the Court rejected an implied discovery rule in Fair Debt Collection Practices Act cases, it left open the door for fraudulent concealment arguments as a separate equitable question. This suggests that while federal statutory causes of action typically don’t, by default, have the discovery rule built in, they may still allow for tolling on fraudulent concealment grounds.

The Power of Accrual Dates

One of the most important strategic considerations is determining when a claim actually begins to accrue. As Hilton emphasizes, arguing for a later accrual date often provides significant advantages over arguing for tolling, primarily because the burden of proof for accrual falls on the defendant. This means your client starts from a stronger procedural position.

Several theories can support later accrual dates:

  • Date of injury
  • Date the tort was “complete”
  • Date of the last wrongful act (in continuing violations)
  • Date of discovery

The “Tort Completion” Theory of Accrual: A Powerful Tool

The “tort completion” theory, illustrated in Biro v. Hartman Funeral Home, 107 Ohio App. 3d 508, 514, 669 N.E.2d 65, 68 (8th Dist. Ct. App. 1995), provides a compelling framework for arguing later accrual dates. In Biro, the court held that a cause of action for intentional infliction of emotional distress does not accrue until the tort is complete – which means when both the injury occurs and the emotional impact is felt. This differs from the discovery rule in that it’s not about when the plaintiff learned of the injury, but rather when all elements of the tort were actually present.

Understanding Continuing Violations

Another valuable strategy involves recognizing continuing or recurring violations. Courts distinguish between:

  • A series of discrete unlawful acts (each triggering its own statute of limitations)
  • One continuous act that is ongoing

This theory proves particularly effective in nuisance cases involving ongoing issues like persistent leaks, odors, or toxic exposures. Depending on your state’s law, the continuing wrong or continuing tort theory may be either an accrual theory or a tolling theory.

Choice of Law as a Strategic Tool

Your research should carefully examine jurisdictional options. Consider:

  • Filing where corporate headquarters are located for fraud or advertising claims
  • Looking at manufacturing defect cases in any jurisdiction along the supply chain
  • Understanding which states treat statutes of limitation as procedural rather than substantive
  • Being aware of borrowing statutes that might affect your choice

Many states consider statutes of limitation “procedural” and apply their own SOLs to cases filed there, even if another state’s substantive law applies. While this might seem advantageous, beware of state borrowing statutes that could complicate your strategy. For more on this, check out Hilton’s separate series on Choice of Law.

State Constitutional Considerations and “Open Courts” Provisions

Don’t overlook state constitutional protections. Many state constitutions contain “open courts” clauses that protect plaintiffs’ rights to bring suits. If your state’s constitution has an “open courts” clause, there is a chance that it could be interpreted to mean that every plaintiff has a right to be heard – and part of that involves making sure that the plaintiff has a reasonable amount of time to file her suit. As demonstrated in Allied Signal, Inc. v. Ott, 785 N.E.2d 1068, 1074 (Ind. 2003), these state Constitutional provisions can provide crucial protection when statutes of limitation or repose would otherwise bar a claim.

Building Your Research Strategy

Success in navigating statutes of limitation requires a comprehensive research plan covering:

  1. Statutory text and interpretive case law
  2. Potential tolling theories
  3. Constitutional implications
  4. Choice of law considerations
  5. Equitable doctrines
  6. Jurisdictional options

Each case requires fresh analysis – avoid assuming that what worked in one case will work in another. The complexity of this area demands thorough investigation of every potential avenue.

Practical Tips for Your Practice

  1. Always check if state constitutional “open courts” clauses might protect your client’s right to sue
  2. Remember that defendants must prove accrual, while plaintiffs must prove tolling (Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001))
  3. Consider equitable estoppel arguments, especially in cases involving misrepresentation
  4. Research whether the discovery rule is “baked in” to your jurisdiction’s accrual date analysis, or if it is a separate tolling theory
  5. Weigh all your choice of law options carefully
  6. Develop a comprehensive research plan that covers both federal and state law options

The Bottom Line

While statute of limitations law may be complex, this complexity creates opportunities for creative advocacy. By understanding the nuances of accrual theories, tolling doctrines, and choice of law principles, attorneys can often find ways to preserve their clients’ claims even in seemingly time-barred cases.

This blog post is based on a continuing legal education presentation by Jonathan Hilton. For specific legal advice, please consult with an attorney licensed in your jurisdiction. If you’re a plaintiff’s attorney grappling with a challenging statute of limitations issue, Hilton Parker LLC can help you develop a comprehensive research strategy. Contact us to discuss your case.