# Sondra L. McKenna and James R. McKenna v. Ortho Pharmaceutical Corporation > Court of Appeals for the Third Circuit · June 17, 1980 · 622 F.2d 657 URL: https://www.frixlaw.com/law-library/cases/9466765 ## Case - **Full name:** Sondra L. McKENNA and James R. McKenna, Appellants, v. ORTHO PHARMACEUTICAL CORPORATION - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 17, 1980 - **Citations:** 622 F.2d 657; 1980 U.S. App. LEXIS 16550 - **Precedential status:** Published - **Opinion:** Dissent by Higginbotham - **Judges:** Higginbotham, Adams, Hunter, Higgin-Botham - **Cited by:** 371 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466765 ## How later opinions describe it (automated extraction) - holding that under Pennsylvania’s ‘borrowing statute,’ the federal court had to use Ohio equitable tolling cases to determine whether a diversity cause of action arising in Ohio 30 should be tolled under Ohio’s statute of limitations - holding that since state appellate court decisions are not binding on federal courts, the fact that a holding is dictum is less important than the strength of the reasoning supporting the holding - noting that “[m]ere obiter” of a state court “may be entitled to little weight” (citation omitted) - holding that when “attempting to forecast state law” under Erie, federal courts “must consider,” inter alia, “analogous decisions.” ## Opinion text A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting. With all due respect to my colleagues, I believe that they err in their continuing adherence to their view on the roles of Ohio’s legislative and judicial branches in the alteration of Ohio’s statute of limitations. As I indicated earlier, it is my belief that the Ohio courts have in the past and will in the future adhere to the view that “statutes of limitation are a legislative prerogative and their operation and effect are based upon important legislative policy.” Wetzel v. Weyant, 41 Ohio St.2d 135 , 323 N.E.2d 711, 713 (1975). As is noted by the majority, the Ortho Pharmaceutical Corporation brought to the attention of this court legislation which amends Ohio’s statute of limitations, § 2305.10 Ohio Rev.Code, to include a discovery period for two types of injury, those caused “by exposure to asbestos or to chromium.” This legislation is irreconcilable with the panel’s rationale. It clearly evidences an intention of the Ohio legislature to reject a general discovery rule that would encompass the plaintiffs’ suit and to continue their traditional role in the area of statutes of limitation. I agree with the majority that the Ohio Supreme Court would not blindly follow the rule of expressio unius est exclusio alterius; however, I believe that it would be followed here. First, Wyler v. Tripi, 25 Ohio St.2d 164 , 267 N.E.2d 419 (1971), where Ohio’s Supreme Court rejected a general discovery rule, is an implicit application of expressio unius est exclusio alterius. The following passage indicates that the Ohio Supreme Court would apply the rule, adverse to the plaintiffs, when it reflected upon the new amendment to § 2305.10 of the Ohio Rev. Code. It should also be noted that although the General Assembly has refused to adopt the discovery rule for medical malpractice cases, it has nevertheless created certain exceptions to the general operation of various other statutes of limitation. *669 Wyler, 267 N.E.2d at 423 . Second, I believe that Ohio’s Supreme Court would consider the members of the Ohio General Assembly to be perfectly capable of drafting a general discovery statute and the court would hold that the General Assembly would have done so had it felt that a more general discovery rule was desirable. I note that the General Assembly has had general statutes presented to it in the past and has chosen not to adopt them. See Wyler v. Tripi, 267 N.E.2d at 423 (describing House Bill No. 177, introduced in the 101st General Assembly, which would have provided for a discovery period in all malpractice cases). The majority’s argument that legislative prerogative extends only to the issue of “when” a statute starts to run and not to whether it is “tolled” is simply a semantic one. The key issue here is which branch of government decides whether these plaintiffs’ suit is timely. Unlike the relationship between many state appellate courts and their respective legislatures, the Ohio courts have more frequently deferred to the Ohio General Assembly in cases of this type. On this record I believe they would also defer to the Ohio legislature and so should the United States Court of Appeals for the Third Circuit. 1 Thus, I would grant the petition for rehearing and affirm the decision of the lower court. . In addition to the new amendment Ortho Pharmaceutical Corp. has forwarded to this court a decision by the Court of Appeals of Ohio, Eighth District, Saultz v. Funk, No. 38328 (May 24, 1979), in which the court refused to extend the discovery rule. This too has failed to persuade the majority. Saultz is merely one of an unbroken line of cases from Ohio which rejects the discovery rule announced by the majority. . In Gemignani v. Philadelphia Phillies National League Baseball Club, Inc., 287 F.Supp. 465 (E.D.Pa.1967), I held that the Pennsylvania discovery rule tolled the statute of limitations until the plaintiff learns of the casual relationship between his physician’s actions and his injury. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466765. Public record. Not legal advice.