8th Cir: Statute of Limitations Bars Switched-At-Birth Lawsuit

[WSJ_law_blog]

Granted, it was 15 years ago, but our memory of our first-year civil procedure class is that we spent a full three months talking about statutes of limitations. We’re sure we talked about Rules 12, 23 and 56, but we don’t remember that — just stuff like if a surgeon leaves an entire place-setting in someones abdominal cavity, but the patient doesn’t experience pain until 10 years later and doesn’t find the can until 20 years later, can he still bring a lawsuit?

We were reminded of those days while reading an 8th Circuit opinion today with, well, a set of facts as zany as that of the zaniest law-school hypo. (Hat tip: How Appealing) The suit, brought by two women and one of the women’s fathers, claims that the two women were switched at birth. Literally — that the women, both born on July 27, 1946 in a North Dakota hospital, were, due to the negligence of the United States, sent home with the wrong mothers. Each woman brought a claim against the U.S. under the Federal Tort Claims Act.

Thing is, the administrative claims weren’t filed until 2002 and 2004, too late for redress. Stated the court: “A claim generally accrues when a plaintiff is injured, although in ‘a diverse array of tort claims,’ there is authority that a claim does not accrue until the plaintiff ‘knows or reasonably should know of both an injury?s existence and its cause.’ The court ruled that the women should have known or had reason to know they were switched at birth more than two years prior to the filings, based on inklings the women had as early as 1973.

Wrote the court: “Here, the plaintiffs could have discovered the basis for their claims well before September 2000 by conducting a diligent inquiry once they had reason to develop suspicions about the accuracy of the doctor?s statement. As difficult as that process might have been for a father and daughter who were matched by a hospital at the time of birth, the law requires this level of investigation by a party who wishes to sue the United States under the FTCA.”

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