Goodman v. Mead Johnson & Co.

ROSENN, Circuit Judge

(concurring and dissenting).

The majority has added another chapter to the ongoing saga of federal courts’ efforts to reconcile the command of Erie Railroad Co. v. Tomkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), with the purposes of federal rules and policies. The majority concludes that Byrd v. Blue Ridge Electric Cooperative, Inc., 356 U.S. 525 , 78 S.Ct. 893 , 2 L.Ed.2d 953 (1958), requires that the New Jersey practice of allocating to the court the decision as to when a cause of action is “discovered” for the purpose of applying the statute of limitations, must yield, in a federal diversity action, to the federal policy favoring jury decisions of disputed issues of fact. I dissent from that conclusion because I believe that the majority has misconstrued the New Jersey Supreme Court’s decision in Lopez v. Swyer, 62 N.J. 267 , 300 A.2d 563 (1973). My difference on that point leads me to some disagreement with the majority on the disposition of the claims presented.

I.

It is, of course, clear that Byrd does not require a federal court trying a diversity case to submit to the jury every issue that may be fairly characterized as factual, regardless of whether the governing state law would submit the issue to the judge. The Supreme Court’s opinion in Byrd makes it clear that when the state practice of trying an issue to the judge is “bound up” with the rights and obligations of parties under state law, the federal court should follow the state practice. See 356 U.S. at 535, 536, 538 , 78 S.Ct. at 899, 900, 901 , 2 L.Ed.2d at 961, 962, 963 .

To determine whether the South Carolina practice, reviewed in Byrd , of having the judge decide the statutory employer issue *576 was an integral part of state substantive law, the Court examined the origins of the practice. The South Carolina case announcing the rule furnished “no reason for selecting the judge rather than the jury to decide” the issue. 356 U.S. at 536 , 78 S.Ct. at 900 , 2 L.Ed.2d at 961 . The rule appeared to have evolved from the state’s practice in judicial review of administrative decisions. Id. Accordingly, the Court found:

nothing to suggest that this rule was announced as an integral part of the special relationship created by the [Workmen’s Compensation] statute. Thus the requirement appears to be merely a form and mode of enforcing the immunity . and not a rule intended to be bound up with the definition of the rights and obligations of the parties.

Id.

A year later, the Court followed a similar analysis in Magenau v. Aetna Freight Lines, Inc., 360 U.S. 273 , 79 S.Ct. 1184 , 3 L.Ed.2d 1224 (1959). At issue there was the Pennsylvania practice of having the trial judge decide whether a Workmen’s Compensation Act plaintiff was the defendant’s employee and whether the employment was “casual” and not “in the regular course” of defendant’s business. Again finding “no reason” for the state practice, 360 U.S. at 278 , 79 S.Ct. at 1187 , 3 L.Ed.2d at 1228 , the Court held that in a federal diversity case the issues would be submitted to the jury.

In contrast to the paucity of reasoning supporting the state practices considered in Byrd and Magenau , we are confronted in Lopez v. Swyer, supra, with a carefully considered decision to allocate to the judge rather than to the jury the decision whether a personal injury plaintiff has “discovered” his or her cause of action within the statutory period. The Lopez opinion, in reviewing the history of the discovery rule, 300 A.2d at 566-7 , stated that the rule requires the accommodation of two conflicting policies. On one hand, the rule is intended to mitigate “the often harsh and unjust results which flow from a rigid and automatic adherence” to a strict statute of limitations. 300 A.2d at 566 . On the other hand, it may be unjust “to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died, and evidence has been lost.” 300 A.2d at 567 . Thus, “in each case the equitable claims of opposing parties must be identified, evaluated and weighed.” Id.

It is not every belated discovery that will justify an application of the rule lifting the bar of the limitations statute. The interplay of the conflicting interests of the competing parties must be considered. The decision requires more than a simple factual determination; it should be made by a judge and by a judge conscious of the equitable nature of the issue before him.

Id.

In my view, this analysis is not, as the majority suggests, predicated “primarily [on] reasons of convenience and efficiency.” Nor is it merely a “form and mode of enforcing,” 356 U.S. at 536 , 78 S.Ct. at 900 , 2 L.Ed.2d at 962 , the discovery rule. To be sure, the Lopez Court considered the practical aspects of its decision, 1 but it noted that “the matter does not rest there.” 300 A.2d at 567 . As the New Jersey Supreme Court envisioned the rule’s operation, “a simple factual determination” of belated discovery of injury will not perfunctorily dictate application of the rule. Furthermore, the Court instructed its trial courts that:

All relevant facts and circumstances should be considered. The determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the de *577 lay may be said to have peculiarly or unusually prejudiced the defendant.

300 A.2d at 568 .

Thus, the application of New Jersey’s discovery rule requires a consideration and balancing of a complex of factors. The balancing envisioned by Lopez is a unitary process not readily divided into “factual” and “equitable” components. As I read Lopez , the allocation of this decision to the trial judge is “intended to be bound up with the . . . rights and obligations of the parties” under state law, Byrd, supra, 356 U.S. at 536 , 78 S.Ct. at 900 , 2 L.Ed.2d at 962 , and the federal courts are thus obligated to follow the state practice.

The majority attempts to compromise the conflicting demands of Erie and the Seventh Amendment by bifurcating the factual and equitable components of the Lopez determination. There is nothing in Byrd which requires such a compromise where the state practice is an integral part of the substantive law. Also, the majority’s approach may require a lengthy jury trial before the statute of limitations can be decided. This procedure is awkward and unnecessarily requires the expenditure of legal and judicial resources. More importantly, the majority approach might encourage forum shopping; a litigant whose case presents a “discovery rule” question may prefer to appeal to the sympathies of a jury and thus choose the federal forum over New Jersey’s courts. Discouragement of such forum shopping was one of the policy bases underlying the Erie decision. See Witherow v. Firestone Tire & Rubber Company, 530 F.2d 160 at 163-164 (3rd Cir. 1976). Indeed, varying “statutes of limitation, perhaps more than any other kind of disparity, present opportunity for the kind of forum shopping Erie intended to preelude.” Id. at 165 . Not only does encouragement of resort to federal courts undermine Erie, but it increasingly burdens federal courts with diversity cases.

In short, I view New Jersey’s allocation of the discovery rule determination to the trial judge as a matter of substantive New Jersey law which, under the mandate of Erie, federal courts are bound to follow. 1a

II.

Since I view the question of whether a personal injury plaintiff under New Jersey law knew or should have known of his or her cause of action within two years of filing his or her complaint as a question for the trial court, I review the factual findings of the district judge in this case under the “clearly erroneous” standard of Federal Rule of Civil Procedure 52(a). I rely on the majority opinion’s account of the evidence in the record.

The evidence with respect to Mrs. Goodman’s knowledge of her cause of action for thrombophlebitis includes statements of her doctor and her consultation with an attorney, both prior to June 11, 1968, and the admission. Suit was not instituted until February 25, 1971. On that record, I cannot say that the district court’s conclusion that she knew or should have known of her claim more than two years before filing the complaint is clearly erroneous.

With respect to the cancer claim, I agree with the majority that the district court’s legal analysis is insufficient. There is no evidence in the record to support the district court’s assumption that the cancer claim and the thrombophlebitis claim represent but one cause of action. I think it is entirely possible that, on a record adequately indicating the complex biochemical and *578 physiological processes involved with oral contraceptives, New Jersey law might recognize separate causes of action for Mrs. Goodman’s thrombophlebitis and cancer illnesses. The district court should have conducted some inquiry into the medical aspects of this problem before assuming that there was but one cause of action which plaintiff sought to split. 2

Finally, I agree with the majority that summary judgment on the per quod claim was inappropriate. Even though I would sustain the district court’s decision that the thrombophlebitis claim is time barred, I agree that, insofar as Mr. Goodman’s claim relates to Mrs. Goodman’s thrombophlebitis, there is no evidence indicating his knowledge of his independent cause of action. Furthermore, if the cancer claim is independent of the thrombophlebitis claim, Mr. Goodman’s per quod claim with respect to Mrs. Goodman’s cancer is not time barred, because the complaint was filed within two years of the discovery of the cancer.

III.

Accordingly, I would affirm the judgment of the district court with respect to the thrombophlebitis claim, and I would reverse and remand that court’s judgment with respect to the cancer and per quod claims for further action consistent with this opinion.

. It noted that “submission of the issue to a jury is in every sense awkward.” 300 A.2d at 567 .

. In Thomas v. E. J. Korvette, Inc., 476 F.2d 471 (3d Cir. 1973), I concluded that in a malicious prosecution suit based on Pennsylvania law, the issue of probable cause should be decided as a legal question by the trial judge “based upon special findings of the jury as to any disputed questions of fact.” Id. at 480 . I felt that we were free to fashion our own rule in that case because Pennsylvania law treated the allocation as a procedural matter not bound up with the fundamental rights of the parties. Id. As I read Lopez , we have a different situation here. Furthermore, bifurcating the probable cause issue in Thomas was not procedurally cumbersome because probable cause was an ultimate issue in the case, rather than a preliminary question as is the discovery exception.

. Of course, if the district court determines that the cancer claim is a separate cause of action, there is no statute of limitations problem, because the complaint was filed within two years of Mrs. Goodman’s learning that she had cancer. If the district court correctly determines that Mrs. Goodman had but one cause of action, I would sustain its conclusion that the action is time barred for the reasons expressed on the thrombophlebitis claim.