Fields v. Legacy Health System

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE FIELDS, personal 

representative of the Estate of

Laura Fields,

Plaintiff-Appellant, No. 03-35386

v.  D.C. No.

LEGACY HEALTH SYSTEM, an CV-03-00048-KI

Oregon Corporation, dba/Legacy

Laboratory Services.

Defendant-Appellee.



Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

GEORGE FIELDS, personal 

representative of the Estate of

Laura Fields; ESTATE OF LAURA

FIELDS, No. 03-35587

Plaintiffs-Appellants,

v.  D.C. No.

CV-02-02548-TSZ

LEGACY HEALTH SYSTEM, an OPINION

Oregon Corporation, dba/Legacy

Laboratory Services.

Defendant-Appellee.



Appeal from the United States District Court

for the District of Washington

Thomas S. Zilly, District Judge, Presiding

7395

7396 FIELDS v. LEGACY HEALTH SYSTEM

Argued and Submitted

September 14, 2004—Portland, Oregon

Filed June 22, 2005

Before: Susan P. Graber, Ronald M. Gould, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould;

Concurrence by Judge Gould

FIELDS v. LEGACY HEALTH SYSTEM 7399

COUNSEL

Ron Perey, Carla Tachau Lawrence, and Doug Weinmaster,

Law Office of Ron Perey, Seattle, Washington, and Jeffrey P.

Foote, Portland, Oregon, for the plaintiff-appellant.

7400 FIELDS v. LEGACY HEALTH SYSTEM

Lindsey H. Hughes, Keating Jones Bildstein & Hughes, P.C.,

Portland, Oregon, for the defendant-appellee.

OPINION

GOULD, Circuit Judge:

This consolidated appeal involves wrongful death actions

filed in two different federal district courts sitting in diversity.

Acting as personal representative of the estate of his late wife,

Laura Fields, George Fields brought an action for wrongful

death against Legacy Health System (“Legacy”) in the United

States District Court for the Western District of Washington.

The complaint alleged that Legacy negligently caused Laura

Fields’ death by failing to diagnose her cervical cancer from

a Pap smear, and sought damages for Raven Fields, a minor

child of George and Laura Fields. Subsequently, George

Fields filed an identical action in the United States District

Court for the District of Oregon. The Oregon federal district

court applied Oregon’s statutes of limitations and repose to

dismiss George Fields’ case with prejudice, denied him leave

to amend his complaint, and denied his motion to certify state

constitutional questions to the Oregon Supreme Court. There-

after, the Washington federal district court dismissed George

Fields’ Washington action based on Oregon’s statutes of limi-

tations and repose, as well as on collateral estoppel grounds.

George Fields appeals these rulings. He first contends that

the district courts erred in applying Oregon law instead of

Washington law. In the alternative, he argues that if Oregon

law applies, we should either: (1) apply Oregon’s disability

tolling provision to toll Oregon’s wrongful death statute of

limitations; (2) apply the “escape clause” in the Uniform Con-

flict of Laws-Limitations Act (“UCLLA”) to allow his Wash-

ington suit to proceed; (3) strike down Oregon’s statutes of

limitations and repose because they violate the United States

FIELDS v. LEGACY HEALTH SYSTEM 7401

Constitution; or (4) certify to the Oregon Supreme Court

whether Oregon’s statutes of limitations and repose violate

the state constitution.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm the district courts’ choice of Oregon law and reject

George Fields’ contentions that we can toll Oregon’s wrong-

ful death statute of limitations or apply the UCLLA’s “escape

clause” to permit his Washington suit to go forward. We also

hold that the Oregon statutes of limitations and repose do not

violate the United States Constitution or the Oregon Constitu-

tion.1

I

On August 3, 1994, Laura Fields had a Pap smear collected

and analyzed at the Legacy Good Samaritan Hospital in Port-

land, Oregon. Defendant-appellee Legacy is the non-profit

corporation that owns this hospital. On August 4, 1994, a hos-

pital employee analyzed Laura Fields’ Pap smear and con-

cluded that it was “Within Normal Limits. Negative.” The

employee also noted that Laura Fields was pregnant. Raven

Fields was born on March 19, 1995.

In 1995, the Fields family moved to Washington. On

March 4, 1996, Laura Fields had another Pap smear and cervi-

cal biopsy. These procedures showed that she had cervical

cancer. In 1997, Laura and George Fields filed a negligence

claim against Legacy in the Circuit Court for the State of Ore-

gon, and the parties eventually reached a settlement agree-

ment whereby damages were paid in exchange for Laura and

1

Because we affirm the Oregon district court’s dismissal of George

Fields’ wrongful death suit, George Fields’ claim that he is entitled to

amend his complaint without leave under Federal Rule of Civil Procedure

15(a) is moot.

7402 FIELDS v. LEGACY HEALTH SYSTEM

George Fields’ release of “any and all claims” on behalf of

themselves and their “heirs, executors and assigns.”2

Laura Fields died on January 16, 2000, while a resident of

Washington. Acting as personal representative of Laura

Fields’ estate, George Fields brought a diversity action

against Legacy for wrongful death, bringing suit in the United

States District Court for the Western District of Washington

on December 23, 2002. He also filed an identical action in the

United States District Court for the District of Oregon on Jan-

uary 13, 2003. Legacy moved to dismiss the Oregon action

pursuant to Federal Rule of Civil Procedure 12(b)(6), and the

Oregon federal district court granted its motion, dismissing

George Fields’ claim with prejudice on the ground that the

suit was barred by Oregon’s statute of limitations3 and also

2

Neither of the federal district courts addressed the scope of the release

contained in this settlement agreement because they disposed of George

Fields’ actions based on Oregon’s statutes of limitations and repose.

3

Oregon Revised Statutes § 30.020(1), provides:

When the death of a person is caused by the wrongful act or

omission of another, the personal representative of the decedent,

for the benefit of the decedent’s surviving spouse [or] surviving

children . . . may maintain an action against the wrongdoer, if the

decedent might have maintained an action, had the decedent

lived, against the wrongdoer for an injury done by the same act

or omission. The action shall be commenced within three years

after the injury causing the death of the decedent is discovered or

reasonably should have been discovered by the decedent, by the

personal representative or by a person for whose benefit the

action may be brought under this section if that person is not the

wrongdoer. In no case may an action be commenced later than

the earliest of:

(a) Three years after the death of the decedent; or

(b) The longest of any other period for commencing an

action under a statute of ultimate repose that applies to the

act or omission causing the injury, including but not limited

to the statutes of ultimate repose provided for in ORS

12.110(4), 12.115, 12.135, 12.137 and 30.905.

FIELDS v. LEGACY HEALTH SYSTEM 7403

was barred by Oregon’s statute of repose.4 The Washington

federal district court decision followed, applying Oregon’s

statute of limitations and Oregon’s statute of repose to dismiss

George Fields’ Washington action with prejudice. George

Fields timely appealed the dismissals from both of the federal

district courts, and we consolidated the cases for the purposes

of appellate review because of the parallel issues.

II

[1] We first address George Fields’ argument that the dis-

trict courts erred in applying Oregon’s statutes of limitations

and repose to dismiss his claims because, he argues, “Wash-

ington has by far the most compelling interest in having its

wrongful death statute applied to this case.” Federal courts sit-

ting in diversity must apply “the forum state’s choice of law

rules to determine the controlling substantive law.” Patton v.

Cox, 276 F.3d 493, 495 (9th Cir. 2002).5 Although the Oregon

4

The Oregon medical malpractice statute of ultimate repose, Or. Rev.

Stat. § 12.110(4), provides:

An action to recover damages for injuries to the person arising

from any medical . . . treatment, omission or operation shall be

commenced within two years from the date when the injury is

first discovered or in the exercise of reasonable care should have

been discovered. However, notwithstanding the provisions of

ORS 12.160 [the disability tolling statute], every [malpractice

action] shall be commenced within five years from the date of

treatment, omission or operation upon which the action is based

....

This five-year repose period is absolute in the absence of fraud, deceit, or

a misleading representation, for which a statutory exception applies. Urb-

ick v. Suburban Med. Clinic, Inc., 918 P.2d 453, 455-56 (Or. Ct. App.

1996). It does not matter when the claim accrued, or even if it has accrued.

Id. at 457.

5

A dismissal for failure to state a claim pursuant to Federal Rule of

Civil Procedure 12(b)(6) is reviewed de novo. Libas Ltd. v. Carillo, 329

F.3d 1128, 1130 (9th Cir. 2003). All allegations of material fact are taken

as true and viewed in the light most favorable to the non-movant. Nat’l

7404 FIELDS v. LEGACY HEALTH SYSTEM

district court relied on grounds that we find unpersuasive, we

affirm its decision to apply Oregon law because our choice of

law analysis under Oregon law leads us to the same conclu-

sion that Oregon law governs. We agree with the Washington

district court’s analysis and affirm its choice of Oregon law.

Oregon and Washington use the same bifurcated approach

in dealing with conflict of law issues. Both states’ laws

require us to make a threshold determination that there is an

actual conflict between the law of the forum and that of

another state. Portland Trailer & Equip., Inc. v. A-1 Freeman

Moving & Storage, Inc., 49 P.3d 803, 806 (Or. Ct. App.

2002); Rice v. Dow Chem. Co., 875 P.2d 1213, 1216 (Wash.

1994). If no material conflict exists between the laws or inter-

ests of the forum and the other state, we apply forum law.

Portland Trailer, 49 P.3d at 806; Rice, 875 P.2d at 1216. If

there is a conflict, we proceed to the next step of the analysis

and apply the forum’s choice of law test. Portland Trailer, 49

P.3d at 809; Rice, 875 P.2d at 1217.

The parties here identified a conflict between Washington

and Oregon’s wrongful death statutes of limitations.6 The

Ass’n for the Advancement of Psychoanalysis v. Cal. Bd., 228 F.3d 1043,

1049 (9th Cir. 2000). However, “[c]onclusory allegations of law and

unwarranted inferences are insufficient to defeat a motion to dismiss for

failure to state a claim.” Id.

We review de novo a district court’s choice of law decisions, Abogados

v. AT&T, Inc., 223 F.3d 932, 934 (9th Cir. 2000), as well as its interpreta-

tions of state law, Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082,

1086 n.3 (9th Cir. 2003).

6

Oregon requires wrongful death actions to be brought within three

years from the date the injury causing death is discovered or reasonably

should have been discovered. Or. Rev. Stat. § 30.020(1). On the other

hand, Washington allows wrongful death actions based on medical mal-

practice claims to be brought within three years of the date of death. Wills

v. Kirkpatrick, 785 P.2d 834, 837 (Wash. Ct. App. 1990) (holding that

general statute of limitations in Wash. Rev. Code § 4.16.080(2) applies in

wrongful death cases based on medical malpractice instead of the medical

malpractice statute of limitations, Wash. Rev. Code § 4.16.350, because

legislature did not intend to bar claims even before death triggered accrual

of right to bring action); see also Wash. Rev. Code § 4.16.080(2).

FIELDS v. LEGACY HEALTH SYSTEM 7405

Oregon district court accepted this conflict as one that satis-

fied the threshold requirement under Oregon’s choice of law

rules and proceeded to apply Oregon’s choice of law test. The

Washington district court, however, identified a conflict

between the states’ statutes of repose and conducted its choice

of law analysis from that starting point.

[2] The Oregon district court erred in determining that a

difference between Oregon’s statute of limitations and that of

another state can raise an actual conflict for the purposes of

Oregon’s choice of law analysis. Oregon, like Washington,

has adopted the UCLLA, which states in pertinent part:

(1) Except as provided by ORS 12.450, if a claim

is substantively based:

(a) Upon the law of one other state, the limitation

period of that state applies; or

(b) Upon the law of more than one state, the limita-

tion period of one of those states, chosen by the law

of conflict of laws of this state, applies.

(2) The limitation period of this state applies to all

other claims.

Or. Rev. Stat. § 12.430; see also Wash. Rev. Code § 4.18.020

(same). Under this provision, the initial determination courts

must make in cases involving disputes over the relevant stat-

ute of limitations is which state’s substantive law forms the

basis of the plaintiff’s claims. Cropp v. Interstate Distrib. Co.,

880 P.2d 464, 465 (Or. Ct. App. 1994); Rice, 875 P.2d at

1216. Once the court decides which state’s substantive law

governs, that state’s statute of limitations applies. Cropp, 880

P.2d at 465; Rice, 875 P.2d at 1216. In other words, UCLLA

states like Washington and Oregon treat statutes of limitations

as procedural for the purposes of conflict of law analyses.

7406 FIELDS v. LEGACY HEALTH SYSTEM

[3] On the other hand, Washington treats statutes of repose

“as part of the body of a state’s substantive law in making

choice-of-law determinations.”7 Rice, 875 P.2d at 1217. Here,

Oregon has a statute of repose that extinguishes all actions

based on a claim of medical malpractice that are not brought

within “five years from the date of the treatment, omission or

operation upon which the action is based.” Or. Rev. Stat.

§ 12.110(4). In DeYoung v. Providence Medical Center, 960

P.2d 919, 926 (Wash. 1998), however, the Washington State

Supreme Court invalidated Washington’s medical malpractice

statute of repose. Because Oregon has an applicable statute of

repose while Washington does not, there is a valid conflict

between Oregon and Washington law that requires us to apply

Washington’s choice of law test. See Rice, 875 P.2d at 1217.

Oregon has yet to decide whether statutes of repose are

substantive or procedural, but this does not affect our holding

that Oregon law governs George Fields’ Oregon action. If, as

seems likely, the Oregon Supreme Court would consider Ore-

gon’s statutes of repose to be substantive,8 then application of

7

Although the distinction between statutes of limitations and statutes of

repose is often blurred, statutes of limitations differ from statutes of repose

because the former “bars plaintiff[s] from bringing an already accrued

claim after a specified period of time,” whereas the latter “terminates a

right of action after a specific time, even if the injury has not yet

occurred.” Rice, 875 P.2d at 1216.

8

The general weight of authority accepts the characterization of statutes

of repose as substantive provisions in a choice of law context. See, e.g.,

Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir. 1987); Wayne v. Tenn.

Valley Auth., 730 F.2d 392, 401-02 (5th Cir. 1984); Pottratz v. Davis, 588

F. Supp. 949, 952-53 (D. Md. 1984); Nieman v. Press & Equip. Sales Co.,

588 F. Supp. 650, 653 (S.D. Ohio 1984); Berns Constr. Co. v. Miller, 491

N.E.2d 565, 570 (Ind. Ct. App. 1986), aff’d 516 N.E.2d 1053 (Ind. 1987);

Harris v. Clinton Corn Processing Co., 360 N.W.2d 812, 816-17 (Iowa

1985); Boudreau v. Baughman, 368 S.E.2d 849, 857 (N.C. 1988);

DePaolo v. Dep’t of Pub. Welfare, 865 A.2d 299, 305 n.7 (Pa. Commw.

Ct. 2005); Rice, 875 P.2d at 1217.

FIELDS v. LEGACY HEALTH SYSTEM 7407

Oregon’s choice of law test will lead to the conclusion that an

Oregon court would apply Oregon law to the present case.9

Oregon and Washington both follow the Restatement (Sec-

ond) of Conflict of Laws § 145 (1971) approach for determin-

ing what substantive law should apply in tort cases. DeFoor

v. Lematta, 437 P.2d 107, 108 n.5 (Or. 1968); Rice, 875 P.2d

at 1217. Under the Restatement, a court should consider the

following contacts to determine which state has “the most sig-

nificant relationship” to the case: (a) the place where the

injury occurred; (b) the place where the conduct causing the

injury occurred; (c) the domicile, residence, nationality, place

of incorporation and place of business of the parties; and (d)

the place where the relationship, if any, between the parties is

centered. Restatement (Second) of Conflict of Laws § 145.

[4] Here, Oregon has the most significant contacts. The

injury in this case was Laura Fields’ misdiagnosis and inabil-

ity to seek treatment, not her resulting death. The conduct

causing the injury was Legacy’s negligence in analyzing

Laura Fields’ pap smear, and this also occurred in Oregon.

Legacy is an Oregon corporation that maintains its principal

place of business in Oregon. Laura Fields was an Oregon resi-

dent when she sustained her injury of misdiagnosis, although

she subsequently became a Washington resident and died

leaving beneficiaries who are Washington residents. Finally,

the relationship between Laura Fields and Legacy existed in

Oregon while Laura Fields was undergoing treatment at Lega-

cy’s hospital. In sum, Washington has a few significant con-

tacts with this case, but they are less significant than Oregon’s

contacts.

9

If the Oregon State Supreme Court were to decide that statutes of

repose are procedural, then Oregon’s choice of law rules would lead to the

same result, because “Oregon courts resolve procedural issues under Ore-

gon law” in the conflict of laws context. Manz v. Cont’l Am. Life Ins. Co.,

843 P.2d 480, 481 (Or. Ct. App. 1993).

7408 FIELDS v. LEGACY HEALTH SYSTEM

Also relevant to the Restatement’s choice of law analysis

is a determination of each state’s interest in having its law

apply. DeFoor, 437 P.2d at 109-10; Johnson v. Spider Staging

Corp., 555 P.2d 997, 1001-02 (Wash. 1976). George Fields

contends that Washington’s interest in seeing its residents

compensated for an allegedly wrongful death is paramount.

However, as both district courts noted, the Washington State

Supreme Court has previously held that Washington’s interest

in seeing its residents compensated for injuries is not overrid-

ing where other contacts with Washington are minimal. Rice,

875 P.2d at 1218-19; see also Restatement (Second) of Con-

flict of Laws § 145 cmt. e (“that one of the parties is domi-

ciled . . . in a given state will usually carry little weight of

itself”).

Rice is factually similar to this case: The plaintiff in Rice

was diagnosed, while residing in Washington, with leukemia

allegedly caused by his exposure to hazardous chemicals

manufactured and sold by the defendant while he was work-

ing in Oregon. The Washington State Supreme Court applied

Oregon’s product liability statutes of limitations and repose to

dismiss the action because the mere fact of residency in

Washington alone was insufficient to warrant application of

Washington law where the plaintiff’s move to Washington did

not extinguish Oregon’s significant interest in allegedly dan-

gerous products used within its boundaries. Rice, 875 P.2d at

1217-19. Moreover, the application of Oregon law achieved

a uniform result for injuries caused by products used within

the state and provided predictability for manufacturers whose

products are used in Oregon. Id. at 1219.

[5] The same reasoning applies here. Oregon has a clear

interest in the standard of medical care within its boundaries.

Oregon has the ability to regulate the medical industry in the

state. It also has an interest in protecting its medical providers

from stale claims and the excessive financial burdens of liti-

gating wrongful death claims. See, e.g., Johnson, 555 P.2d at

1002. We hold that Oregon’s statutes of repose and limita-

FIELDS v. LEGACY HEALTH SYSTEM 7409

tions apply to George Fields’ claim whether brought in Ore-

gon or Washington.

III

[6] Having concluded that Oregon law applies to both the

Oregon and Washington actions, we next consider George

Fields’ argument that Oregon’s statutes of limitations and

repose do not bar the claim he is bringing on behalf of his

child because “the anti-tolling provision in ORS 12.110(4) . . .

is not incorporated into ORS 30.020.” We reject this argu-

ment because the statutory text does not permit the interpreta-

tion urged by George Fields. Oregon Revised Statutes section

30.020(1)(b) expressly incorporates section 12.110(4), the

medical malpractice statute of repose, which in turn expressly

prohibits the use of the disability tolling statute, section 12.160.10

[7] Moreover, the plain language of the disability tolling

statute, section 12.160,11 limits its application to “action[s]

10

Section 30.020(1) provides in pertinent part: “In no case may an

action be commenced later than the earliest of: (a) Three years after the

death of the decedent; or (b) The longest of any other period for com-

mencing an action under a statute of ultimate repose that applies to the act

or omission causing the injury, including but not limited to the statutes of

ultimate repose provided for in ORS 12.110(4) . . . .”

Section 12.110(4) provides in pertinent part that, “notwithstanding the

provisions of ORS 12.160 [the disability tolling statute], every [malprac-

tice] action shall be commenced within five years from the date of the

treatment, omission or operation upon which the action is based.”

11

The full text of Section 12.160 reads:

If, at the time the cause of action accrues, any person entitled to

bring an action mentioned in ORS 12.010 to 12.050, 12.070 to

12.250 and 12.276 is within the age of 18 years or insane, the

time of such disability shall not be a part of the time limited for

the commencement of the action; but the period within which the

action shall be brought shall not be extended more than five years

by any such disability, nor shall it be extended in any case longer

than one year after such disability ceases.

7410 FIELDS v. LEGACY HEALTH SYSTEM

mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and

12.276.” See also Stupek v. Wyle Labs. Corp., 963 P.2d 678,

685 (Or. 1998) (holding that courts lacked authority to toll

statutory discrimination claim for insanity where the claim

was not enumerated in section 12.160 and anti-discrimination

statute did not otherwise provide for tolling). The actions here

appealed fall under Oregon’s wrongful death statute, section

30.020, which is clearly not within the statutory ranges listed

in section 12.160. Thus, we decline to apply section 12.160 to

toll George Fields’ wrongful death action.

IV

George Fields also contends that, if we apply Oregon law,

we should follow the “escape clause” provision in the

UCLLA to allow his Washington case to go forward under

Washington’s statute of limitations.

[8] As noted above, Washington has adopted the UCLLA.

Wash. Rev. Code §§ 4.18.010-.904. Section 4 of the UCLLA,

which is codified at Washington Revised Code section

4.18.040, provides:

If the court determines that the limitation period of

another state applicable under [the Washington con-

flict of law borrowing statute and limitation period

computation rules] is substantially different from the

limitation period of this state and has not afforded a

fair opportunity to sue upon, or imposes an unfair

burden in defending against, the claim, the limitation

period of this state applies.

This provision is an “escape clause,” allowing a court to eval-

uate the disparate effect of a foreign statute of limitations and

choose to apply a local limitations period to avoid unfairness.

Hein v. Taco Bell, Inc., 803 P.2d 329, 333-34 (Wash. Ct. App.

1991).

FIELDS v. LEGACY HEALTH SYSTEM 7411

[9] Application of this “escape clause” to permit George

Fields to avoid the Oregon statute of limitations does not

resolve George Fields’ problem because his claim would still

be barred by Oregon’s statute of repose. In other words,

George Fields has to circumvent both Oregon’s statute of lim-

itations and its statute of repose in order to continue his action

in the Washington district court, but the language of the “es-

cape clause” covers only limitations periods and the Washing-

ton State Supreme Court expressly held in Rice, 875 P.2d at

1217, that statutes of repose are not the same as statutes of

limitations for conflicts of law purposes. We conclude that

George Fields’ claim is time-barred by the statute of repose

under Oregon law, notwithstanding the UCLLA’s “escape

clause.”

V

We now address George Fields’ assertion that Oregon’s

wrongful death statutes of limitations and repose violate the

equal protection and due process clauses of the United States

Constitution.

1

George Fields argues that the Oregon wrongful death stat-

utes of limitations and repose violate equal protection because

they impermissibly discriminate between claimants whose

decedents happen to live for more than three years after dis-

covering the injury causing the death and five years of sus-

taining the injury causing death, as in Laura’s case, and

claimants whose decedents die within three years of discover-

ing the injury causing death and five years of sustaining the

injury causing death.

[10] The appropriate level of equal protection review in this

case is the “rational basis test,” which applies to challenges of

legislative acts that neither affect the exercise of fundamental

rights, nor classify persons based on protected characteristics,

7412 FIELDS v. LEGACY HEALTH SYSTEM

such as race, alienage, national origin, or sex. See, e.g.,

Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th Cir.), cert.

denied, 540 U.S. 1046 (2003). Under this test, statutes are

generally “presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a

legitimate state interest.” Id. (quoting City of Cleburne v. Cle-

burne Living Ctr., 473 U.S. 432, 440 (1985)). In essence, a

legislative classification subject to rational basis scrutiny

“must be ‘wholly irrational’ to violate equal protection.” De

Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004). The

challenger bears the burden of negating every conceivable

basis which might support the legislative classification,

whether or not the basis has a foundation in the record. Id.

[11] Here, the classifications made in the Oregon statutes

of limitations and repose are rationally related to the legiti-

mate legislative ends of avoiding stale claims and limiting the

costs of litigation and medical care. See Jones v. Salem Hosp.,

762 P.2d 303, 309 (Or. Ct. App. 1988) (noting that Oregon’s

medical malpractice repose statute was “enacted in response

to the so called ‘medical malpractice crisis’ ”). The statutes at

issue here withstand equal protection scrutiny under the

United States Constitution. See Nored v. Blehm, 743 F.2d

1386, 1387 (9th Cir. 1984) (per curiam) (upholding the con-

stitutionality of a similar Oregon statute of limitations in the

face of an equal protection challenge); Sealey v. Hicks, 788

P.2d 435, 441 (Or. 1990) (holding that similar Oregon product

liability statute of repose does not violate federal equal pro-

tection clause), abrogated on other grounds by Smothers v.

Gresham Transfer Inc., 23 P.3d 333 (Or. 2001).

2

George Fields further argues that the Oregon statutes of

limitations and repose violate the substantive and procedural

aspects of the due process clause of the United States Consti-

tution. These claims must fail.

FIELDS v. LEGACY HEALTH SYSTEM 7413

[12] First, for the purposes of substantive due process

review, state actions that implicate anything less than a funda-

mental right require only that the government demonstrate “a

reasonable relation to a legitimate state interest to justify the

action.” Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004)

(per curiam), cert. denied, 125 S. Ct 56 (2004) (quoting

Washington v. Glucksberg, 521 U.S. 702, 722 (1997). This is

the appropriate standard of review for this case as Oregon’s

wrongful death statutes do not implicate any of the “personal

activities and decisions” the Supreme Court has identified as

being “deeply rooted in our history and traditions” or “funda-

mental to our concept of constitutionally ordered liberty.” Id.

at 596 (citing Glucksberg, 521 U.S. at 727 & n.19, which

listed marriage, family association, and procreation as funda-

mental activities).

[13] Applying this deferential standard of review, we con-

clude that Oregon’s statutes of limitations and repose do not

violate George Fields’ rights to substantive due process

because, as explained above, the statutes are rationally related

to the legitimate legislative goals of avoiding stale claims and

limiting the costs of litigation and malpractice claims.

[14] We reach the same result under a procedural due pro-

cess analysis. Although his briefing is unclear on this point,

it appears that George Fields’ procedural due process argu-

ment rests on the theory that he has been deprived of a prop-

erty right in his “remedy” or cause of action without due

process of law.

Causes of action are a species of property protected by the

Fourteenth Amendment’s Due Process Clause. Lyon v. Agusta

S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001); Zavala v. United

States, 876 F.2d 780, 784 (9th Cir. 1989); Austin v. City of

Bisbee, 855 F.2d 1429, 1435 (9th Cir. 1988). However, “a

party’s property right in any cause of action does not vest

until a final unreviewable judgment is obtained.” Lyon, 252

F.3d at 1086; see also Austin, 855 F.2d at 1436 (explaining

7414 FIELDS v. LEGACY HEALTH SYSTEM

that, although a cause of action is a species of property, “it is

inchoate and affords no definite or enforceable property right

until reduced to final judgment”). Thus we previously rejected

similar procedural due process challenges to statutes cutting

off the right to sue on this ground. See, e.g., Austin, 855 F.2d

at 1436 (holding that retroactive application of amendments

to bar plaintiff from pursuing suit commenced prior to effec-

tive date of amendments did not violate procedural due pro-

cess because plaintiff had not yet obtained a final judgment).

Moreover, even assuming that George Fields has a cogniza-

ble property right in his cause of action, his procedural due

process challenge fails because it is well established that the

legislature can adjust the benefits and burdens of our eco-

nomic lives as long as it does not behave in an arbitrary and

irrational way. Lyon, 252 F.3d at 1086; Austin, 855 F.2d at

1436 (explaining that economic legislation “come[s] to the

Court with a presumption of constitutionality, and . . . the bur-

den is on [the complainant] to establish that the legislature has

acted in an arbitrary and irrational way”).

[15] We have upheld statutes of repose where we deter-

mined that the legislature was pursuing a rational policy in

enacting them. Lyon, 252 F.3d at 1086 (holding that retroac-

tively applying repose statute to cut off claims that accrued

before its enactment did not violate procedural due process

because legislature was acting to further rational goal of revi-

talizing flagging aircraft industry). The Oregon statute of ulti-

mate repose, Oregon Revised Statutes section 12.110(4), was

a rational legislative response to the medical malpractice cri-

sis and to the problem of stale claims. Accordingly, we sus-

tain it in the face of George Fields’ procedural due process

challenge.

[16] Courts will generally uphold a statute of limitations

against a due process challenge as long as the plaintiff is

accorded a reasonable time, under all the circumstances, to

bring suit before the bar takes effect. See, e.g., Wheeler v.

FIELDS v. LEGACY HEALTH SYSTEM 7415

Jackson, 137 U.S. 245, 255-58 (1890) (holding that statute

authorizing cancellation of realty sales records where pur-

chaser failed to compel conveyance within eight years did not

deprive the purchaser of property rights because purchaser’s

“property” was right to conveyance, and cancellation under

such circumstances was simply a reasonable limitation

imposed on enforcement of that right12); Brackney v. Combus-

tion Eng’g, Inc., 674 F.2d 812, 815 (9th Cir. 1982) (rejecting

due process challenge to retroactive application of state stat-

ute limiting tolling for disability to six years to bar cause of

action which accrued prior to its effective date); Pittman v.

United States, 341 F.2d 739, 741 (9th Cir. 1965) (holding that

application of two-year limitations period to minor’s claim

did not violate due process even though minor had no guard-

ian ad litem at the time the period ran).

Here, the challenged statute of limitations, Oregon Revised

Statutes section 30.020(1), provides that wrongful death

actions must be brought within three years of the date the

injury causing death was discovered. Since Laura Fields’ mis-

diagnosis was discovered on March 4, 1996, George Fields

would have had to file this action by March 4, 1999, in order

to avoid the statute of limitations bar. The problem, of course,

as George Fields has pointed out, is that in this case, the stat-

ute of limitations eliminated his right to bring this wrongful

death suit even before Laura Fields died on January 16, 2000.

Consequently, George Fields characterizes Oregon’s wrongful

death scheme as “nonsensical” and “irrational” because it “re-

12

In so holding, the Supreme Court stated:

It is the settled doctrine of this court that the legislature may pre-

scribe a limitation for the bringing of suits where none previously

existed, as well as shorten the time within which suits to enforce

existing causes of action may be commenced, provided, in each

case, a reasonable time, taking all the circumstances into consid-

eration, be given by the new law for the commencement of suit

before the bar takes effect.

Wheeler, 137 U.S. at 255.

7416 FIELDS v. LEGACY HEALTH SYSTEM

wards beneficiaries of the injured person who dies within the

statute of limitations . . . while harming the hopeful beneficia-

ries of an injured person who [can]not file a claim before the

injured person dies.” However, we are not persuaded.

Section 30.020(1) provides a remedy for a decedent’s bene-

ficiaries only “if the decedent might have maintained an

action, had the decedent lived, against the wrongdoer for an

injury done by the same act or omission.” As the Oregon

Supreme Court explained in Storm v. McClung, it essentially

places a decedent’s personal representative in the decedent’s

shoes, imputing to the representative whatever rights and lim-

itations to those rights the decedent himself possessed. 47

P.3d 476, 482 (Or. 2002) (holding that beneficiaries of volun-

teer killed while working for city were barred from bringing

a wrongful death action because the accident was already cov-

ered by Oregon’s workers’ compensation law and there was

a statute immunizing public bodies from liability for such

covered claims that would have precluded the volunteer him-

self from suing the city for negligence). In other words,

because “ORS 30.020(1), by its own terms, does not give a

decedent’s personal representative a right to sue [a tortfeasor]

for negligent wrongful death when the decedent never had

that right in the first place,” a beneficiary’s wrongful death

action under Oregon Revised Statutes section 30.020(1) is

derivative of the decedent’s right to sue for the same injury

when alive. Id. at 481.

[17] Given that Oregon’s wrongful death statute is intended

to allow beneficiaries to recover only the compensation that

was otherwise due the decedent, the fact that the statute of

limitations eliminated George Fields’ wrongful death claims

as a representative of the estate of Laura Fields, even before

they accrued does not lead to an unusually “harsh” result in

this case because Laura Fields already lived long enough to

bring suit herself and recover a settlement award.13 In light of

13

George Fields errs in maintaining that we cannot consider the settle-

ment agreement because the district courts declined to do so and because

FIELDS v. LEGACY HEALTH SYSTEM 7417

Storm we hold that the Oregon statute of limitations was rea-

sonable as applied in this case.

VI

[18] We finally consider George Fields’ request that we

certify to the Oregon Supreme Court the questions whether

Oregon’s wrongful death scheme violates the Oregon Consti-

tution’s remedy clause and its privileges and immunities

clause. We decline to exercise our discretion to certify these

questions because “controlling precedent,” Or. Rev. Stat.

§ 28.200, is available to guide us. See W. Helicopter Servs.,

Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 631 (Or. 1991)

(explaining that the existence of controlling Oregon precedent

for a certified question is one of the most important factors

militating against the Oregon Supreme Court’s discretionary

acceptance of the certified question); see also Kremen v.

Cohen, 325 F.3d 1035, 1037-38 (9th Cir. 2003) (noting that

we have discretion whether to certify a question of state law

it is extrinsic to the complaint. We can affirm a dismissal for failure to

state a claim on any proper ground supported by the record even if the dis-

trict court did not consider the issue. Ove v. Gwinn, 264 F.3d 817, 821 (9th

Cir. 2001). Additionally, while our review of a 12(b)(6) dismissal is gener-

ally limited to the contents of the complaint, Gilligan v. Jamco Dev.

Corp., 108 F.3d 246, 248 (9th Cir. 1997), we can consider an extrinsic

document if it is integral to the plaintiff’s claims and its authenticity is

undisputed, because in such cases the plaintiff “obviously is on notice of

the contents of the document and the need for a chance to refute evidence

is greatly diminished.” Parrino v. FHP, Inc., 146 F.3d 699, 706 & n.4 (9th

Cir. 1998) (holding that it was permissible for district court entertaining

12(b)(6) motion to consider group insurance application offered by defen-

dant in action alleging improper denial of benefits). Thus we can consider

the settlement agreement as demonstrating that Laura Fields had a reason-

able time to bring suit on the injury, as she in fact did so and gained some

recovery. However, we decline to interpret in the first instance the scope

of the release entered by the parties by their settlement agreement of Janu-

ary 9, 1998; the scope of the release has never been addressed by either

federal district court, and we consider the record inadequate for our con-

clusive interpretation of the release.

7418 FIELDS v. LEGACY HEALTH SYSTEM

and that the “certification procedure is reserved for state law

questions that present significant issues . . . and that have not

yet been resolved by the state courts”).

George Fields contends that Oregon’s wrongful death stat-

ute of limitations, Or. Rev. Stat. § 30.020, and medical mal-

practice statute of repose, Or. Rev. Stat. § 12.110(4), violate

the state constitution’s remedy clause, which provides that

“every man shall have remedy by due course of law for injury

done him in his person, property, or reputation.” Or. Const.

art. I, § 10.

George Fields’ key assertions with respect to his remedy

clause claim are that wrongful death actions existed in Oregon

at common law at the time the state constitution was adopted

in 1857 and that the state legislature lacks the authority to

deny a remedy for injury to the kinds of rights that existed

then. Two lines of controlling Oregon precedent dictate that,

under current law, we must reject George Fields’ assertions.

First, the Oregon Supreme Court has held repeatedly that,

in Oregon, the right of action for wrongful death is purely

statutory and that in Oregon there was no right of action for

wrongful death at common law. Storm, 47 P.3d at 479-82;

Smothers, 23 P.3d at 358; Lakin v. Senco Prods., Inc., 987

P.2d 463, 472 (Or.), op. clarified by 987 P.2d 476 (Or. 1999);

Kilminster v. Day Mgmt. Corp., 919 P.2d 474, 479 (Or.

1996); Greist v. Phillips, 906 P.2d 789, 796 (Or. 1995);

Hughes v. White (In re Estate of White), 609 P.2d 365, 368

(Or. 1980); Goheen v. Gen. Motors Corp., 502 P.2d 223, 226

(Or. 1972); Richard v. Slate, 396 P.2d 900, 901 (Or. 1964),

superseded by statute on other grounds as stated in Rennie v.

Pozzi, 656 P.2d 934, 938 (Or. 1982); see also Perham v. Port-

land Gen. Elec. Co., 53 P. 14, 18 (Or. 1898) (recognizing that

wrongful death is a “new right of action” created by statute);

Putman v. S. Pac. Co., 27 P. 1033, 1033-34 (Or. 1891)

(same). Under these precedents, Oregon Revised Statutes sec-

FIELDS v. LEGACY HEALTH SYSTEM 7419

tion 30.020 and Oregon Revised Statutes section 12.110(4) do

not violate Article I, section 10.

Second, the Oregon Court of Appeals has held that even if

a common law claim for wrongful death existed in Oregon in

1857, so did a pre-existing territorial law containing a six-year

statute of limitations and statute of repose that accrued at the

time of the occurrence of the tortious act. Barke v. Maeyens,

31 P.3d 1133, 1138 (Or. App. 2001), rev. denied, 45 P.3d 448

(Or. 2002) (citing Statutes of Oregon 1854, Act for the Limi-

tation of Actions, ch. 1, § 4, p.171). In Barke, the court mea-

sured the statute of repose under both the territorial law and

Oregon Revised Statutes section 12.110(4) from the date of

the allegedly negligent medical treatment by the defendant.

Because the plaintiff’s action was commenced more than six

years later, the court ruled that any action at common law

would already have been barred by the law as it existed when

the framers adopted Article I, section 10. Id. at 1139. Accord-

ingly, there could be no constitutional violation. Id. In this

case, the breach of duty that resulted in Laura Fields’ death

occurred on August 3, 1994, but no wrongful death action was

filed until December 23, 2002, more than six years later. As

in Barke, then, there could be no constitutional violation.

The Oregon Supreme Court will not exercise its discretion

to consider a certified question unless, among other require-

ments, “there is no controlling precedent in the decisions of

the Supreme Court and the intermediate appellate courts of

this state.” Or. Rev. Stat. § 28.200. We therefore must con-

sider cases of the Oregon Court of Appeals before deciding to

certify a question to the Oregon Supreme Court. W. Helicop-

ter, 811 P.2d at 631. Barke, a decision by the Oregon Court

of Appeals, holds that Oregon’s wrongful death statutes of

limitations and repose, as applied here, do not violate Article

I, section 10, of the Oregon Constitution. In view of that hold-

ing, we decline to certify to the Oregon Supreme Court the

remedy clause question framed by George Fields.

7420 FIELDS v. LEGACY HEALTH SYSTEM

We also decline to certify the question urged by George

Fields of whether Oregon’s wrongful death statutory scheme

violates the Oregon Constitution’s privileges and immunities

clause. Article I, section 20 of the Oregon Constitution pro-

vides that: “No law shall be passed granting to any citizen or

class of citizens privileges, or immunities, which, upon the

same terms, shall not equally belong to all citizens.” George

Fields argues that Oregon’s wrongful death statute of limita-

tions and statute of repose violate Article I, section 20

because they impermissibly discriminate between classes of

wrongful death claimants whose decedents happen to survive

more than three years after discovery of the injury causing the

death, as in Laura Fields’ case, and claimants whose dece-

dents died within three years of discovering the injury causing

death.

The Oregon Supreme Court rejected a challenge to a very

similar classification in Sealey, 788 P.2d at 440. The Sealey

plaintiff argued that Oregon’s products liability statute of

repose, which required products liability cases to be brought

within eight years after the date of purchase, violated the state

privileges and immunities clause because it denied persons

injured by products more than eight years after their initial

sale the same legal claims as persons injured by products sold

more recently.

The Sealey court stated:

The question is whether plaintiff is a member of a

class, some of whom have been denied a privilege or

immunity granted to others in the same class, or

whether the manufacturers and sellers of products

have been granted a privilege or immunity not avail-

able equally to others in the same class. In evaluating

whether a class exists under Article I, section 20, we

must first determine whether the class is created by

the challenged law itself or by virtue of characteris-

tics apart from the law in question.

FIELDS v. LEGACY HEALTH SYSTEM 7421

Id. (internal citation, quotation marks and ellipsis omitted;

emphasis added).

Applying this standard, the Sealey court held that the

classes alleged by the plaintiff were improper because they

were “clearly classes ‘created by the challenged law itself.’ ”

Id. The court further explained that, “[a]ny statute of repose,

by setting a time limit beyond which the legislature declines

to recognize the existence of a legal injury, will divide tortfea-

sors and their victims into classes based upon those time lim-

its. However, such a decision is within the purview of the

legislature.” Id. (emphasis added). See also Van Wormer v.

City of Salem, 788 P.2d 443, 446 (Or. 1990) (rejecting chal-

lenge to a classification which “exist[ed] only because the

statutory scheme of which it [wa]s a part exist[ed]” and which

was “not based on any ad hominem characteristic, such as

race, sex or religious affiliation, of [class] members”).

The allegedly unconstitutional classification here is simi-

larly based on the time limits the Oregon statutes impose on

wrongful death claimants, rather than on any personal charac-

teristics of wrongful death claimants whose decedents happen

to survive more than three years after discovering the injury

causing their deaths. Thus, there is no open question under

Oregon case law about whether George Fields has identified

an actionable class under the Oregon Constitution’s privileges

and immunities clause. We therefore decline to certify this

issue for the Oregon Supreme Court’s consideration.

VII

We affirm the district courts’ choice of Oregon law, decline

to toll Oregon’s wrongful death statute of limitations, and

conclude that the UCLLA’s “escape clause” does not permit

George Fields to proceed with his action in the Washington

district court. We also hold that the Oregon statutes of limita-

tions and repose violate neither the United States Constitution

nor the Oregon Constitution.

AFFIRMED.

7422 FIELDS v. LEGACY HEALTH SYSTEM

GOULD, Circuit Judge, concurring:

I write separately and additionally to express regret that we

have no ability, in this diversity case, to reexamine controlling

Oregon precedent on the state constitutional remedy clause

issue and to allow a remedy to be given to the decedent’s

daughter. The Oregon Supreme Court and its intermediate

appellate courts have consistently held that there was no com-

mon law right to recover for wrongful death. The Oregon

Supreme Court has twice expressed misgivings about its pre-

cedent. Storm v. McClung, 47 P.3d 476, 482 & n.4 (Or. 2002)

(explaining that “[t]his court has previously has been apprised

of the questionable premise underlying the widely held view

that there was no common-law action for wrongful death

[and] acknowledged as much” but declining to consider the

question because it “is beside the point in this case”); Goheen

v. Gen. Motors Corp., 502 P.2d 223, 225-27 (Or. 1972)

(reviewing history of wrongful death actions in Oregon and

stating that “[a]lthough there may be some merit in that view

[that Oregon had a common law right of action for wrongful

death], our own previous decisions are to the contrary, and we

prefer to rest our decision in this case on other grounds”).

Nonetheless, the Oregon Supreme Court has not expressly

overruled its prior precedent, and we are not at liberty to alter

a state’s established case law on a state law issue. It is further

regrettable that we cannot properly tender the remedy clause

issue to the Oregon Supreme Court for its decision, because

the Oregon Supreme Court has been explicit in setting its cer-

tification guidelines, and under those standards this issue may

not now be certified. If change is to come in Oregon’s state

law, bringing Oregon into alignment with the growing num-

ber of other jurisdictions that recognize a common law

wrongful death action, LaFage v. Jani, 766 A.2d 1066, 1079

(N.J. 2001); Haakanson v. Wakefield Seafoods, Inc., 600 P.2d

1087, 1092 & n.11 (Alaska 1979); Wilbon v. D. F. Bast Co.,

382 N.E.2d 784, 785-87 (Ill. 1978); Rohlfing v. Moses

Akiona, Ltd., 369 P.2d 96 (Haw. 1961), overruled on other

grounds by Greene v. Texeira, 505 P.2d 1169 (Haw. 1973);

FIELDS v. LEGACY HEALTH SYSTEM 7423

Gaudette v. Webb, 284 N.E.2d 222, 229 (Mass. 1972), it must

come by action of the Oregon Supreme Court, and not from

this Court.