# 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/9466766

## 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/9466766

## 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.
A.
Although I am as moved as my colleagues are by the alleged tragic effects from Mrs. McKenna’s ingestion of appellee’s birth control pills and while I am as convinced as they are that the discovery rule is a humane and desirable component of medical malpractice law, 1 1 must respectfully dissent. I cannot join them because the Ohio Supreme Court has not adopted and would not now adopt the modern view on discovery in medical malpractice cases. I see no sign that Ohio is withdrawing from its views on the medical malpractice doctrines relevant to this case. The distinguished trial judge who tried this case so patiently, was not unsympathetic to the plight of Mrs. McKenna; yet from my view he is being reversed — not because he was wrong — but because the relevant Ohio law is unenlightened.
With respect, I submit that the majority disregards Ohio’s current (though archaic) doctrine and announces a rule of law that Ohio should adopt. In 1971 the Ohio Supreme Court firmly and resolutely rejected the discovery rule. Wyler v. Tripi, 25 Ohio St.2d 164 , 267 N.E.2d 419 (1971). Because I conclude that the Ohio Supreme Court would adhere to the Wyler v. Tripi decision, I must dissent.
B.
Ohio courts have long held that the plaintiff’s inability to discover the tortious act of the defendant has no relevance to the running of the applicable statute of limitations. E. g., Kerns v. Schoonmaker, 4 Ohio 331 (1831) (negligent acts of justice of the peace); 34 Ohio Jurisprudence 2d 536. This doctrine was reaffirmed by the Ohio Supreme Court in Wyler v. Tripi in 1971 and applied to medical malpractice actions. In Wyler v. Tripi, the court rejected an explicit request of the plaintiff to overrule that harsh precedent. In declining the invitation, the court recognized that its action could “lead to the unconscionable result that [an] injured party’s right to recovery [would] be barred by the statute of limitations before he is even aware of its existence.” 267 N.E.2d at 421 . The court relied neither on a policy justification for a short *670 period of limitations nor on humanity considerations when it rejected the discovery rule. Indeed, it noted that “[tjhere is much to recommend the adoption of a discovery rule.” It declined to adopt the rule on the ground that
to do so would place us in the obvious and untenable position of having done so directly in the face of a clear and opposite legislative intent. 2
Id. at 423.
In spite of this explicit statement the majority declines to follow Wyler . It argues that the Wyler rationale would be abandoned in a 1980 decision of the Ohio Supreme Court and thus it feels free to include the discovery rule in its decision. I do not agree. None of the materials the majority cites persuades me that an abandonment of the Wyler rationale is in the wind, nor have I unearthed any materials that foretell such an event.
The primary source of the majority’s view is Melnyk v. The Cleveland Clinic, 32 Ohio St.2d 198 , 290 N.E.2d 916 (1972), a decision of the Ohio Supreme Court, decided one year after Wyler . In an opinion by Justice Herbert, who also wrote the Wyler opinion, the court stated:
. the negligent leaving of a metallic forceps and a nonabsorbent sponge inside a patient’s body during surgery will toll the running of the statute of limitation upon that cause of action until such time as the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act.
290 N.E.2d at 918 .
Melnyk does not overrule Wyler; it merely carves out a very specific and narrow exception: when surgical instruments are left in a patient’s body a discovery period tolls the running of the statute of limitations. The Melnyk court did not “abando[n] the rationale” of Wyler when it created this exception. Majority Opinion Typescript, at 666. The court held that the case before it did not disturb the legislative judgment. Justice Herbert noted that the limitations period in most malpractice cases reflected a balancing of the interests of physicians and patients and that the Ohio legislature had struck the balance in favor of physicians because of *671 the difficulties of proof in most malpractice cases. The court argued that in a “foreign-objects” case the plaintiff’s proof of the physician’s negligence, once the existence of the foreign object was established, was irrefutable, and therefore the court felt free to include a discovery period in the “foreign objects” cases. 290 N.E.2d at 917 . The Melnyk court carefully noted that it did not “need to disturb the holding in Wyler , nor interfere in the affairs of our sister branch government, in order to accord this rule of law the viability we have determined it must have.” Id. at 918.
The following language from the beginning of the Melnyk opinion further suggests the court was reaffirming the legislature’s authority in this area.
The Wyler case involved the problems faced in the defense of a “stale” claim for medical malpractice. As in other fields of highly technical and inexact science, evidence in defense of such claims is unusually difficult to acquire and present. . [T]he General Assembly exercised its prerogative in this field and enacted a statute of limitation of comparatively brief duration. Wyler recognized the legislative authority to so act, but as heretofore noted, did so with an unmistakable lack of enthusiasm.
Id. at 917 (footnotes omitted).
The validity of the Wyler rationale is underscored by a decision of the Ohio Supreme Court five years later, Amer v. Akron City Hospital, 47 Ohio St.2d 85 , 351 N.E.2d 479 (1976). There the court deferred to the legislative judgment on statutes of limitations. In Amer a husband brought an action for loss of consortium because of an alleged medical malpractice upon his wife. The court held that the applicable statute of limitations “is not tolled until termination of the physician-patient relationship.” 351 N.E.2d at 480 . (quotation is from the court’s syllabus) (emphasis added). 3 The husband had argued that tolling was necessary because the malpractice was not discovered until after the termination of the physician-patient relationship. If tolling was not permitted, his action would be barred before his wife’s was barred, even though his action arose out of the same negligence. The court held that it would not disturb its forty-year-old rule set forth in Kraut v. Cleveland Ry. Co., 132 Ohio St. 125 , 5 N.E.2d 324 (1936) because the legislature had failed to change the rule, although it had recently amended portions of the code covering statutes of limitations in medical malpractice cases.
The Amer decision was rendered over the dissent of Justice Herbert, the author of the Wyler and Melnyk opinions. Justice Celebrezze also dissented and argued that the statute of limitations should not run until the physician-patient relationship terminated. He stated:
“Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity?”
351 N.E.2d at 485 .
In spite of this plea, he was unable to persuade a majority of the court to reject the legislative decision.
The Amer decision convinces me that the Ohio Supreme Court has not abandoned its decision not to “interfere in the affairs of [its] sister branch [of] government.” Melnyk, 290 N.E.2d at 918 . Further it shows that whether or not the Oregon courts feel that legislative inaction “is a weak reed upon which to lean,” Berry v. Braner, 245 Or. 307 , 421 P.2d 996, 998 (1966), quoted in Majority Opinion Typescript, at 665, the Ohio Supreme Court has chosen to lean on it.
C.
Finally, I am convinced that the majority reading of the Melnyk decision is incorrect *672 because every state or federal court decision in Ohio on this question has rejected that reading, e. g., Simmons v. Riverside Methodist Hospital, 44 Ohio App.2d 146 , 336 N.E.2d 460 (1975); Woodgeard v. Miami Valley Hospital Society of Dayton, 47 Ohio Misc. 43 , 354 N.E.2d 720 (C.P.1975), aff’d mem. No. C.A. 4772 (Ct.App. Sept. 12, 1975); Shrewsbury v. Smith, 511 F.2d 1058 (6th Cir. 1975), including those courts that have considered claims for injuries allegedly resulting from birth control pills. E. g., Gillan v. Searle Laboratories, Civ. No. C-2-77-863 (S.D.Ohio, Oct. 13, 1978).
D.
The instant case reflects the inherent disadvantage of a plaintiff making the tactical decision to litigate a diversity case in a federal court 4 where the core of plaintiff’s case is contingent upon a federal court anticipating a state law doctrine in the “womb of time, but whose birth is distant.” 5 For we have been asked here to deliver prematurely a new Ohio statute of limitations doctrine despite the fact that that concept has been expressly rejected, and recently so, by every state and federal court in Ohio. 6 I do not claim that the Ohio Supreme Court’s views on when the statute of limitations starts to run in cases such as these are part of the modern or enlightened trends. But if counsel wants to test whether Ohio will have more enlightened views on the statute of limitations issues, it is far better for counsel to litigate those issues in the state courts of Ohio which have the final say on when their recently expressed views will be repudiated.
For the reasons expressed above I respectfully dissent.
. The Wyler court stated:
The General Assembly has often considered and left standing our interpretation of R.C. 2305.11, as announced in Gillette, Bowers and DeLong. In the 106th General Assembly (1965-66),' House Bill No. 30 was introduced. In the 105th General Assembly (1963-64), House Bill No. 959 was introduced. Both bills would have amended R.C. 2305.11, by increasing the limitation period for mal- ’ practice to two years. Neither bill survived the scrutiny of the committee to which it was referred. A similar fate befell House Bill No. 907, which was introduced in the 103rd General Assembly (1959-60); and was designed to eliminate the statute of limitations for malpractice.
The most significant expression of legislative position occurred in the 101st General Assembly (1955-56), less than three years after this court’s decision in the DeLong case. In that session, House Bill No. 177 was introduced to add the following language to R.C. 2305.11:
“If the action is for malpractice the cause thereof shall not accrue until the malpractice is discovered.”
House Bill No. 177 was rejected by the committee to which it was referred.
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. (Cf. Mosby v. Michael Reese Hospital [1964], 49 Ill.App.2d 336 , 199 N.E.2d 633 .) In R.C. 2305.15 and 2305.16, the General Assembly has provided that the statute of limitations is tolled if the person entitled to bring the action is under a legal disability, or if the person liable to an action departs or absconds from the state. Moreover, in R.C. 2305.09 the General Assembly specifically enacted a discovery rule “if the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property.” Finally, under R.C. 2305.04, if a person is entitled to recover the title or possession of real property, but is under legal disability, the statute of limitations is tolled. Significantly and intentionally absent is any statutory provision to the effect that the lack of knowledge on the part of an injured party in a medical malpractice action operates to delay the commencement of the running of the statute of limitations. See Townsend v. Eichelberger (1894), 51 Ohio St. 213 , 38 N.E. 207 .
267 N.E.2d at 423 .
. See Majority Opinion, Typescript at 666 n. 54, for a discussion of the importance of the court’s syllabus.
. I recognize that plaintiff originally filed suit in a Pennsylvania state court, but obviously counsel must have been aware that suits such as the instant one can be removed to a federal district court pursuant to 28 U.S.C. § 1441 . This court, through Judge Aldisert, described Huddell v. Levin, 537 F.2d 726, 732-33 (3d Cir. 1976) (footnote omitted) as a “troublesome case, implicating nascent concepts of state tort liability, [and] demonstrating] again the impracticality of the federal diversity forum in the twentieth century.” This court further emphasized:
We are to apply New Jersey law, yet we are without the specific guidance of viable New Jersey precedents. This appeal requires us to predict how the New Jersey Supreme Court would react when presented with novel and difficult questions of tort law. Specifically we are to predict how that court would view the liability of an automobile manufacturer for the design of a head restraint in a case in which it is alleged that fatal injuries were caused by impact against the head restraint received when the decedent’s stopped car was struck from behind by another car travelling at least 50 m. p. h.
Here, unlike Huddell , there is recent viable Ohio precedent. But we have been asked to predict that such recent precedent will be overruled.
. In a somewhat related context Judge Learned Hand stated:
Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant; on the contrary I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before it.
Spector Motor Service, Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.) (Learned Hand, J. dissenting), vacated and remanded, 323 U.S. 101 , 65 S.Ct. 152 , 89 L.Ed. 101 (1944).
. See pages 671-672, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466766. Public record. Not legal advice.