Petition — Ortho Pharmaceutical Corp. v. McKenna

Supreme Court brief1980

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AUG2 81980

80-308 se

HAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ORTHO PHARMACEUTICAL CORPORATION,

Petitioner,

vV.

SONDRA L. McKENNA and

JAMES R. McKENNA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

HAROLD R. TYLER, JR.

PATTERSON, BELKNAP, WEBB & T'YLER

30 Rockefeller Plaza

New York, New York 10112

(212) 541-4000

Counsel for Petitioner

Of Counsel:

Davip F. DosBIns

THEODORE B. VAN ITALLIE, JR.

August 1, 1980

QUESTION PRESENTED

1. Under the Rules of Decision Act, 28 U.S.C. § 1652,

should the United States Court of Appeals for the Third

Circuit, in applying state law in a diversity case, ignore the

pertinent rulings of the state intermediate appellate courts

merely because the highest state court had not, to quote from

the opinion below, “recently spoken to the precise question at

issue in a particular setting” (a8)?

TABLE OF CONTENTS

i rca ois > ao ob 98 vv 00, 9°66

ESE OO ee eee eee

Statutory Provisions Involved .:.............04..

ee eee ere

Reason for Granting the Writ...................

Tuis Court SHOULD GRANT THE WRIT TO RESOLVE

THE CONFLICT BETWEEN THE T'HIRD AND THE OTHER

CrirRcUITS OVER THE PROPER REGARD TO BE PAID TO

StaTE INTERMEDIATE APPELLATE DECISIONS IN

ASCERTAINING STATE LAW IN DIVERSITY CASES. .

tk rece se ceeseeeeevctene

APPENDIX

Opinion of the Court of Appeals.............

Supplemental Opinion of the Court of Appeals

Sur the Denial of the Petition for Rehearing

Saultz v. Funk, No. 38328 (Ct. of App., Cuyahoga

EE re

Spangler v. Southern Mills, No. 77AP-586 (Ct. of

App., Franklin Co.), motion to certify overruled,

No. 78-399 (Sup. Ct. 1978)..............0..

Kottler v. University Hospitals of Cleveland, No.

37404 (Ct. of App., Cuyahoga Co. 1978).....

Clutter v. Johns-Manville Sales Corp., No. 78-8424

UE orc ccc secvcscessascseecs

Clutter v. Johns-Manville Sales Corp., No. C78-229

ME vce vd eserves recacacee

a28

TABLE OF AUTHORITIES

CASES: PAGE

Adams v. Cuyler, 592 F.2d 720 (8d Cir. 1979), cert.

granted, 100 8. Ct. 1011 (1980) ................. 1]

Allen v. A. G. Edwards & Sons, Inc., 606 F.2d 84 (5th

a Le cae T AT be hehe chee bes le ese ha ae 10

Amer v. Akron City Hospital, 47 Ohio St. 2d 85, 351

EE EP ON ek ho as ch 0c ea ee aD

Baily v. Southern Pacific Transportation Co., 613 F.2d

Re a Cr dN cake cba e ct edawewrss 10

Bernhardt v. Polygraphic Co., 350 U.S. 198 (1956) ... 4,11

Clay v. Sun River Mining Co., 302 F.2d 599 (10th Cir.

wo |

NES ass 04 00s avd DRAWER RTE Meade ke eee 10

Clutter v. Johns-Manville Sales Corp., No. 78-8424 (6th

NG US SN a hk Wa Oma ee wnt ork oahu 4 iby Oo 4,7

Clutter v. Johns-Manville Sales Corp., No. C78-229 (N.D.

EN i Nits a ea b eae ea cerns cua eoieneme.s 4,7

Commissioner v. Estate of Bosch, 387 U.S. 456 (1967) . 11, 12

Community National Bank v. Fidelity Deposit Co., 563

Fae Bee A ME BEE ns os Saeed cnn akys 10

Davis v. Piper Aircraft Corporation, 615 F.2d 606 (4th

Ms We bac iss Oe pee ee ke ek Eee ks 10

Dwiggins v. Combustion Engineering, No. C78-196

SOR Sp SE Seen rea eran r ae 4

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)... 8,138

Feminist Women’s Health Center v. Mohammed, 586 F.2d

530 (5th Cir. 1978), cert. denied, 100 S. Ct. 262 (1979) 10

Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940) 9, 12

Garris v. Schwartz, 551 F.2d 156 (7th Cir. 1977) . 10

Gillan v. Searle Laboratories, No. C-2-77-865 (S.D. Ohio

a AS Te ENE NS ie eg ie Genre ene 4

ili

CASES: PAGE

Gooding v. Wilson, 405 U.S. 518 (1972) ............ 11,12

Klingbiel v. Lockheed Aircraft Corp., 494 F.2d 345 (9th

ly PEs 56s ONE RGERET AER PEAS OER RUS e's 10

Kottler v. University Hospitals of Cleveland, No. 37404

(Ct. of App., Cuyahoga Co. 1978) .............. 4

MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280

SO EP eer Pree ee T EET CR eer e ee 4

Melnyk v. Cleveland Clinic, 32 Ohio St. 2d 198, 290

ee 8 Rr eee err ere Tee ee 3, 7

Mondavi v. Long Island Jewish Medical Center, 501 F.2d

Pe Ge GA PDs va ch ennces sv akve kes vaeeays 10

Porter v. Parke-Davis Pharmaceutical Co., No. C76-153

MY NE oe eas ewan ebalend Kaela

Russell v. Todd, 309 U.S. 280 (1940)........0..005.

Saultz v. Funk, No. 38328 (Ct. of App., Cuyahoga Co.

PE RR ab ae PIE BA as ee eaes 4,7

Shrewsbury v. Smith, 511 F.2d 1058 (6th Cir. 1975).. 4, 7

Simmons v. Riverside Methodist Hospital, 44 Ohio App.

2d 146, 336 N.E.2d 460 (Franklin Co. 1975), motion

to certify overruled, (Sup. Ct. 1976) .............. 4

Simpson v. Jefferson Life Insurance Co., 465 F.2d 1320

Se GE ROD veo vsAles Cis Wks Kew d oes Oe es Mewes 10

Six Companies of California v. Joint Highway District,

ee a Se Ss os os Ch eked ees cow aca wie 9

Spangler v. Southern Mills, No. 77AP-586 (Ct. of App.,

Franklin Co.), motion to certify overruled, No. 78-399

ee ak ee ie ne aie dee iia io fe a 4,7

Springfield St. Bank v. National St. Bank of Elizabeth,

Say ie SO Cs BOOMS oe 6 eke ee aeiws cakes 12

Stoner v. New York Life Insurance Co., 311 U.S. 464

rh a8 se Ea VE Ce nee ae Ob as 9

Weber v. Ortho Pharmaceuticals, Inc., No. C74-4Y (N.D.

I 5. 65-5 pat caw WkG BE RRR REO Ce ee ese 4

CASES: PAGE

West v. American Telephone and Telegraph Co., 311

ee CRED cs ci vad vas cubn enue cane naan d, 8, 9, 12

Woodgeard v. Miami Valley Hospital Society of Dayton,

47 Ohio Misc. 48, 354 N.E.2d 720 (Common Pleas,

Montgomery Co.), affd mem., No. CA-4772 (Ct. of

App., Montgomery Co. 1975) ...............05. 4

Wyler v. Tripi, 25 Ohio St. 2d 164, 267 N.E.2d 419

CRUTED ie coxccavercesnos ne tuee.eeer eee 5, 6

STATUTES

28 U.S.C. § 1254(1) 0... cece eee ee eee weceeenes 2

BD WARES. SRO ovine bc dundueny eerie 3

Be Rn SUE a5 cn cccceveacineciauene eee 2

Ohio Revised Code § 2305.10 .................04. 2,5, 7

Ohio Revised Code § 2305.11 ...............0000. 7

OTHER AUTHORITIES

Burger, The State of the Federal Judiciary 1979, 65

ABAd Tae Ce BCE oo ns kei vanes tcuteeeee

Burger, Has the Time Come?, 55 F.R.D. 119 (1972) .. 9

IN THE

Supreme Court of the United States

October Term, 1980

ORTHO PHARMACEUTICAL CORPORATION,

Petitioner,

sais

SONDRA L. McKENNA and

JAMES R. McKENNA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Ortho Pharmaceutical Corporation (“Ortho”) requests

that a writ of certiorari issue to review the judgment and

opinions of the United States Court of Appeals for the Third

Circuit entered in this proceeding on March 18, 1980, and,

denying Ortho’s petition for rehearing, on June 2, 1980.

OPINIONS BELOW

The majority and dissenting opinions of the Court of

Appeals in this matter dated March 18, 1980, are reproduced

in the Appendix hereto beginning at page al. The Court of

Appeals filed a supplemental opinion on June 17, 1980, also

with a dissent, denying Ortho’s motion for rehearing which

is reproduced in the Appendix beginning at page a238.

Neither opinion has as yet been published in the Federal

Reporter.

JURISDICTION

The judgment of the Court of Appeals for the Third

Circuit was originally entered on March 18, 1980. The Third

Cireuit denied a timely petition for rehearing on June 2,

1980. This petition for a writ of certiorari was filed within

60 days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

1. Under the Rules of Decision Act, 28 U.S.C. § 1652,

should the United States Court of Appeals for the Third

Circuit, in applying state law in a diversity case, ignore the

pertinent rulings of the state intermediate appellate courts

merely because the highest state court had not, to quote from

the opinion below, “recently spoken to the precise question at

issue in a particular setting” (a8)?

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1652: State laws as rules of decision

The laws of the several states, except where the Constitu-

tion or treaties of the United States or Acts of Congress

otherwise require or provide, shall be regarded as rules of

decision in civil actions in the courts of the United States, in

cases where they apply.

Ohio Revised Code § 2305.10:

An action for bodily injury or injuring personal property

Shall be brought within two years after the cause thereof

arose.

For purposes of this section, a cause of action for bodily

injury caused by exposure to asbestos or chromium in any of

its chemical forms arises upon the date on which the plain-

tiff is informed by competent medical authority that he has

been injured by such exposure, or upon the date which, by

the exercise of reasonable diligence, he should have become

aware that he had been injured by the exposure, whichever

date occurs first.

STATEMENT OF THE CASE

This is a product liability action by the McKennas

against Ortho in which they allege that Mrs. McKenna’s

ingestion of Ortho’s oral contraceptive caused her to suffer

injuries: first hypertension in 1969 and then a stroke in 1972.

The action was started in 1974 in Pennsylvania state court,

although the cause of action arose in Ohio, and was removed

by Ortho pursuant to 28 U.S.C. § 1441(b) to federal district

court in Pittsburgh.

At the conclusion of the evidence, which consumed

nearly a month, the District Court granted Ortho’s motion

for a directed verdict on the ground that Mrs. McKenna’s

claim, and her husband’s derivative claim, were barred by

the two year Ohio statute of limitations which the District

Court, sitting in Pennsylvania, was bound to apply under

Pennsylvania conflict of law rules. The District Court based

its conclusion on the finding that under Ohio law Mrs.

McKenna’s cause of action arose in 1969, the date of first

manifestation of injury attributed to Ortho’s drug.

Over a vigorous dissent, the Third Circuit reversed,

agreeing that Ohio law governed but finding that the Ohio

Supreme Court would, if presented with the opportunity

today, adopt a “discovery rule” which would toll the running

of Ohio’s statute until Mrs. McKenna knew or reasonably

should have discovered that she had been injured by Ortho’s

product, thereby making her claim timely.

The basis of the Third Circuit’s ruling was that the Ohio

Supreme Court would today apply the discovery rule to a

claim like the McKennas’ even though that court had

expressly limited the discovery rule to cases concerning

foreign objects left in the body after surgery in Melnyk v.

Cleveland Clinic, 32 Ohio St. 2d 198, 290 N.E.2d 916 (1972).

In so ruling, the majority ignored the recent, consistent

body of Ohio intermediate appellate decisions which have

interpreted Melnyk as precluding exténsion of the discovery

rule to cases not involving such “foreign objects” and which

form, in the words of the dissent, “an unbroken line of cases

from Ohio which rejects the discovery rule announced by the

majority” (a33).* The majority below, upon determining that

no recent Ohio Supreme Court decision had “spoken to the

precise question at issue in a particular setting” (a8), in effect

overruled these uniform and clear Ohio state and local

federal rulings by declaring itself free to forecast Ohio law

“‘after giving proper regard to relevant rulings of other

courts of the state’ ”’ (a8).

The lack of wisdom in indulging in such speculation

was soon vividly illustrated. Unbeknownst to the Third

*The cases in question included the following published deci-

sions: Simmons v. Riverside Methodist Hospital, 44 Ohio App. 2d 146, 336

N.E.2d 460 (Franklin Co. 1975), motion to certify overruled, (Sup. Ct.

1976); Woodgeard v. Miami Valley Hospital Society of Dayton, 47 Ohio

Misc. 43, 354 N.E.2d 720 (Common Pleas, Montgomery Co.), aff'd mem.

No. CA-4772 (Ct. of App., Montgomery Co. 1975); and the following

unpublished decisions which can be authoritatively cited in Ohio, eg.,

Ohio Local Court Rule 19, Eighth Appellate Judicial District,

authorizing citation to unpublished Ohio opinions: Saultz v. Funk, No.

38328 (Ct. of App. Cuyahoga Co. 1979) (Included in Appendix hereto

at a34); Spangler v. Southern Mills, No. 77AP-586 (Ct. of App., Franklin

Co.), motion to certify overruled, No. 78-399 (Sup. Ct. 1978) (Included in

Appendix hereto at a54); Kottler v. University Hospital of Cleveland, No.

37404 (Ct. of App., Cuyahoga Co. 1978)(Included in Appendix hereto

at a60).

An equally consistent body of federal decisions from Ohio had

reached the same conclusion as to the limitations on the discovery rule

in Ohio, Clutter v. Johns-Manville Sales Corp., No. 78-8424 (6th Cir.

1979), denying permission under 28 U.S.C. § 1293(b) to appeal from

District Court decision C78-229 (N.D. Ohio 1978) (Included in

Appendix hereto at a68, a69); Shrewsbury v. Smith, 511 F.2d 1058 (6th

Cir. 1975); Dwiggins v. Combustion Engineering, No. C78-196 (N.D. Ohio

1978); including cases considering causes of action for injury from oral

contraceptives, Gillan v. Searle Laboratories, No. C-2-77-865 (S.D. Ohio

1978); Porter v. Parke-Davis Pharmaceutical Co., No. C76-153 (8.D. Ohio

1976); Weber v. Ortho Pharmaceuticals, Inc., No. C74-4Y (N.D. Ohio

1974).

In bypassing these interpretations of state law by federal courts

in Ohio, the Third Circuit ignored the principle that special weight is

to be accorded rulings on local law by local federal judges. E.g.,

Bernhardt v. Polygraphic Co., 350 U.S. 198, 204 (1956); MacGregor v. State

Mutual Life Assur. Co., 315 U.S, 280, 281 (1942).

Circuit, five days before it filed its opinion in this case the

Governor of Ohio signed into law an amendment to Ohio

Rev. Code § 2305.10, the applicable statute of limitation,

providing for a discovery rule but limited solely to injuries

due to asbestos and chromium poisoning.

Ortho petitioned for rehearing on the basis that the Ohio

legislature, with full awareness of the uniform rulings of the

state appellate and federal courts limiting the discovery rule

to foreign object cases, elected to adopt the discovery rule for

only two classes of injuries—asbestos and chromium—and

that the Ohio courts would interpret the amendment to

preclude application of a discovery rule to injuries not caused

by those two substances.

The rehearing petition was also based on the ground

that the Third Circuit’s disregard of the relevant body of

Ohio law as set forth in the uniform state intermediate

appellate decisions violated the principle of deference to such

rulings required by West v. American Telephone and Telegraph

Co., 311 U.S. 223 (1940). In a supplemental decision, again

over a vigorous dissent, the court below denied the petition.

The untenable position of the Third Circuit in ignoring

recent decisions of the Ohio Courts of Appeal was graphical-

ly exposed in its opinion denying the petition for rehearing

(a28 to a33).

The Third Circuit’s original ruling was bottomed on the

rationale that “{llegislative inaction ‘is a weak reed upon

which to lean in determining legislative intent’ ” (al6). Its

reasoning was that “the sole justification” for the Ohio

Supreme Court’s refusal to adopt a discovery rule in the

Wyler and Amer cases* “was that such action should be left

to the legislature” (al4-al5) and that this justification had

been abandoned by the Ohio Supreme Court in Melnyk (a19).

It then went on to explain that “the [Ohio] legislature left

unresolved when a cause of action arises and when the

* Amer v. Akron City Hospital, 47 Ohio St. 2d 85, 351 N.E.2d 479

(1976); Wyler v. Tripi, 25 Ohio St. 2d 164, 267 N.E.2d 419 (1971). The

dissenting opinion below analyzes the holdings of these two cases in

detail (a20-a25).

statute commences to run” (al6-al7), and concluded that it

was therefore free to adopt the discovery rule “at least in the

absence of an expression by the legislature prohibiting such

an adoption” (al7),

The March 13, 1980 revision by the Ohio Legislature

providing for a discovery rule in only two limited classes of

injury, poisoning from chromium and asbestos, destroyed

this rationale for the original opinion by the Third Circuit.

As noted by the dissent (a21-a22), the Legislature prior to its

limited adoption of a discovery rule had consistently rejected

proposed legislation providing for a general discovery rule.

Now faced with clear and indisputably “recent” legislative

action in this area, the Third Circuit in its supplemental

opinion on the petition for rehearing proceeded to rule that

such legislative action did not “preclude judicial adoption of

the discovery rule in appropriate circumstances” (a30), and

thus adhered to its prior refusal to apply Ohio law, both

judicial and legislative.

The Third Circuit then resorted to erecting fantasy

excuses as alternative explanations for its de facto repeal of

the Rules of Decision Act. Thus it gave the following

explanation for its adhering to its original ruling (a30):

Adoption of the contrary construction would abrogate

[the Ohio Supreme Court’s] well-established principle,

expressly reaffirmed in Wyler v. Tripi, 25 Ohio St. 2d

164, 267 N.E.2d 419 (1971), that a cause of action for

medical malpractice arises, at the latest, when the

physician-patient relationship terminates. We believe

the Ohio Supreme Court would hold that if the legisla-

ture had intended, by its passage of this amendment, not

merely to extend greater protection to victims of

asbestos and chromium poisoning but at the same time

to deprive victims of medical malpractice of the protec-

tion they currently enjoy under the Ohio Supreme

Court’s decisional law, it would have done so expressly

and not by implication.

Limitations for malpractice actions, however, are not

governed by the statute at issue, Ohio Rev. Code § 2305.10,

but rather Ohio Rev. Code § 2305.11. Moreover, apart from

the exception made for the foreign objects cases, Ohio cases

have uniformly refused to apply the discovery rule to mal-

practice cases. E.g. Sauliz v. Funk, supra, printed at

Appendix a34. Application in this case of the, statute of

limitations accrual date uniformly and consistently applied

by the local Ohio courts cannot possibly “deprive victims of

medical malpractice of the protection they currently enjoy

under the Ohio Supreme Court decisional law” (a30).

Finally, in its opinion denying the petition for rehearing,

the Third Circuit explains that the Ohio Legislature in its

1980 amendment only dealt with the date of accrual of a

cause of action and not the question of folling. The 1980

amendment, however, was enacted in response to Ohio state

and federal decisions refusing to apply the foreign objects

tolling exception of Melnyk v. Cleveland Clinic, supra, to

asbestosis cases.* As pointed out in the dissenting opinion to

the denial of the petition of rehearing, “the issue of ‘when’ a

statute starts to run and whether it is ‘tolled’ is simply a

semantic one” (a32). Moreover, the Ohio cases in fact discuss

application of the discovery rule in terms of “tolling” not

“accrual,”** and these cases have uniformly refused to

apply the discovery rule in absence of specific legislative

intent mandating its application.

Thus the opinion of the Third Circuit on the petition for

rehearing is not only illogical but in flat derogation of the

established Ohio decisions, including recent ones of the

Supreme Court, whose holdings are either misstated or

ignored.

* E.g., Shrewsbury v. Smith, supra; Clutter v. Johns-Manville Sales

Corp., supra; Spangler v. Southern Mills, Inc., supra.

** See e.g. Clutter v. Johns-Manville Sales Corp., supra (a68); Saultz v.

Funk, supra (a34); Spangler v. Southern Mills, supra (a54).

REASON FOR GRANTING THE WRIT

This Court should grant the Writ to resolve the

conflict between the Third and the other Circuits over

the proper regard to be paid to state intermediate

appellate decisions in ascertaining state !aw in diversity

cases

The Third Circuit declared itself free to forecast Ohio

law because Ohio’s highest court had not “recently spoken to

the precise question at issue in a particular setting” (a8). In

the absence of a recent definitive Ohio Supreme Court pro-

nouncement, the Third Circuit described the forecasting

process as finding the state law “ ‘after giving ‘proper regard’

to relevant rulings of other courts of the state’ ” (a8). It then

proceeded to ignore the large, directly relevant body of Ohio

intermediate appellate court decisions* and arrogated the

right to (all):

(Cjonsider relevant state precedents, analogous decisions,

considered dicta, scholarly works, and any reliable data

tending convincingly to show how the highest court in

the state would decide the issue at hand.

In other words, the Third Circuit rid itself of the require-

ments of the Rules of Decision Act by not respecting state

intermediate appellate court decisions. If this ruling is

allowed to stand, it will open a gap in the state-federal

uniformity principles of Ere through which will flow

numerous diversity plaintiffs and defendants seeking escape

from unfavorable state law. The immediate impact of the

*In a footnote the majority stated thut it was “not persuaded

that the lower state and federal court decisions relied on by defendant

. specifically address or definitively resolve the question at issue

here” (all). But those cases address and reject the very rationale

employed by the Third Circuit in this case: that the Melnyk decision

permits extension of the discovery rule to circumstances other than

foreign objects left in the body after surgery. Moreover, under West v.

American Telephone and Telegraph Co., supra, those decisions “resolve”

the question at issue absent persuasive data to the contrary.

Third Circuit’s ruling in this case puts the point in sharp

focus. The only forums in the country applying a general

discovery rule to claims governed by the Ohio statute of

limitations are federal courts within the Third Circuit. It is

difficult to conceive of a more forceful impetus for federal

court forum shopping by Ohio plaintiffs.*

Federal courts are required to follow state intermediate

appellate decisions in diversity cases unless they are con-

vinced by persuasive evidence that the state’s highest court

would rule otherwise. This has been the standard since it

was established in four cases decided by this Court in the

1939 Term.** West v. American Telephone and Telegraph Co.,

311 U.S. 223 (1940) (which concerned the same intermediate

appellate courts involved here: the Ohio Courts of Appeal), is

directly on point and distills the teaching of those cases as

follows (311 U.S. at 236-7):

A state is not without law save as its highest court has

declared it. There are many rules of decision commonly

. accepted and acted upon by the bar and inferior courts

which are nevertheless laws of the state although the

highest court of the state has never passed upon them.

In those circumstances a federal court is not free to

reject the state rule merely because it has not received

the sanction of the highest state court, even though it

*In view of the tremendous burdens imposed on the federal

courts by diversity jurisdiction, the impetus for federal court forum

shopping from the decision below is particularly unwelcome. See, eg.,

Burger, The State of the Federal Judiciary 1979, 65 ABAJ 358, 362

(March 1979); Burger, Has the Time Come?, 55 F.R.D. 119, 120 (1972).

** Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940); Siz

Companies of California v. Joint Highway District, 311 U.S. 180 (1940);

West v. American Telephone and Telegraph Co., 311 U.S. 223 (1940);

Stoner v. New York Life Insurance Co., 311 U.S. 464 (1940); See also:

Russell v. Todd, 309 U.S. 280, 293 (1940), where the Court accepted the

interpretation of a New York statute of limitations arrived at by a

New York intermediate appellate court “{i]n the absence of a defini-

tive ruling by the highest court of the state... .”

thinks the rule is unsound in principle or that another is

preferable.

Where an intermediate appellate state court rests its

considered judgment upon the rule of law which it

announces, that is a datum for ascertaining state law

which is not to be disregarded by a federal court unless

it is convinced by other persuasive data that the highest

court of the state would decide otherwise.

The other circuits honor this principle of deference to

state intermediate appellate court decisions* and, as recently

* E.g., Davis v. Piper Aircraft Corporation, 615 F.2d 606, 615 (4th

Cir. 1980) (“The decisions of these intermediate state courts of record

are binding on federal courts sitting in diversity jurisdiction.”’); Baily

v. Southern Pacific Transportation Co., 613 F.2d 1385, 1388 (5th Cir.

1980) (“Intermediate state court decisions are also to be followed in the

absence of a decision from the highest court, unless this Court is

convinced that the highest court would decide otherwise.”); Allen v. A.

G. Ed-vards & Sons, Inc., 606 F.2d 84, 87 (5th Cir. 1979); Feminist

Women’s Health Center v. Mohammed, 586 F.2d 530, 552 (5th Cir. 1978),

cert. denied, 100 S. Ct. 262 (1979); Community National Bank v. Fidelity

Deposit Co., 563 F. 2d 1319, 1321 n.1 (9th Cir. 1977) (“In determining

that law, ‘[djecisions of the California Courts of Appeal are to be

followed by a federal court where the Supreme Court of California has

not spoken on the question in the absence of convincing evidence that

the highest court of the state would decide differently’ ” [citing

Klingbiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n.2 (9th Cir.

1974)}); Garris v. Schwartz, 551 F.2d 156, 158 (7th Cir. 1977) (“We are

not convinced that the Illinois Supreme Court would reject the rule of

law as announced and applied by the appellate court.”); Mondavi v.

Long Island Jewish Medical Center, 501 F.2d 1065, 1074 (2d Cir. 1974)

(“While federal courts no longer regard themselves as absolutely

bound even by an apparently consistent body of decisions by

intermediate state appellate courts if there is reason to believe the

highest court of the state would disagree ... here we find no basis for

such a belief.’’); Simpson v. Jefferson Standard Life Insurance Co., 465

F.2d 1320, 1323 (6th Cir. 1972) (“decisions of intermediate state courts

must be followed by the federal court unless there is reason to believe

they would not be followed by that state’s highest court”); Clay v. Sun

River Mining Co., 302 F.2d 599, 602 (10th Cir. 1962) (“An intermediate

state court ... in the absence of more convincing evidence of what the

state law is, should be followed by a federal court in deciding a state

question.”).

as 1972, this Court reaffirmed this long-standing rule in

Gooding v. Wilson, 405 U.S. 518, 525-6 n.3 (1972):

We were informed in oral argument that the Court of

Appeals of Georgia is a court of statewide jurisdiction,

the decisions of which are binding upon all trial courts

in the absence of a conflicting decision of the Supreme

Court of Georgia. Federal courts therefore follow these

holdings as to Georgia law. Fidelity Union Trust Co. v.

Field, 311 U.S. 169 (1940); Bernhardt v. Polygraphic Co. of

America, 350 U.S. 198, 205 (1956).

Under the decision below, however, state intermediate

appellate decisions are just additional features of the state’s

jurisprudential landscape to be examined by the federal

court in diversity cases from the assumed vantage point of

the state’s highest court.* In the view of the Third Circuit,

such decisions may be ignored without any showing of con-

vincing and persuasive data that they would not be followed

by the state’s highest court.**

The Third Circuit purports to derive its authority to

override state intermediate appellate decisions from Commis-

stoner v. Estate of Bosch, 387 U.S. 456 (1967). There the Court

*The decision below is not the first occasion on which the Third

Circuit has minimized the importance of state intermediate appellate

decisions, i.e, Adams v. Cuyler, 592 F.2d 720, 725 n.5 (3d Cir. 1979), cert.

granted, 100 S. Ct. 1011 (1980), (“Federal courts are not bound to, but may

consider the pronouncements of state intermediate appellate courts as an

indication of how the state’s highest court would rule.”),

** Bernhardt v. Polygraphic Co., 350 U.S. 198, 205 (1956), suggests what

must be shown, at minimum, before a pronouncement of state law by a

state tribunal may be rejected by a federal court. In adhering to the 1910

ruling of the Vermont Supreme Court, this Court stated:

[T]here appears to be no confusion in the Vermont decisions, no

developing line of authorities that casts a shadow over the estab-

lished ones, no dicta, doubts or ambiguities in the opinions of

Vermont judges on the question, no legislative development that

promises to undermine the judicial rule.

Here the court below did not even purport to cite any “confusion,” “dicta,

doubts or ambiguities” casting a shadow over the long line of Ohio

intermediate appellate decisions rejecting extension of the discovery rule.

ruled that, when application of a federal statute depends on

an issue of state law, a federal court should defer to the

ruling of the highest court of the state on that issue, but that

it was not bound by lower court rulings (387 U.S. at 465):

If there be no decision by that [highest state] court then

federal authorities must apply what they find to be the

state law after giving “proper regard” to relevant rul-

ings of other courts of the State. In this respect, it may

be said to be, in effect, sitting as a state court.

But there is nothing in Bosch, which involved a federal

estate tax controversy, to indicate an intent to depart from

the rule in diversity cases that state intermediate appellate

court decisions are to be followed in the absence of compel-

ling evidence that they would be rejected by the state’s

highest court.* This Court in Gooding v. Wilson, 405 U.S.

518, 525-6 n.3 (1972), citing Fidelity Union Trust Co. v. Field,

supra, held that rulings of state intermediate appellate courts

were to be followed in diversity cases.

By taking the Bosch test, rather than the test stated in

West v. American Telegraph and Telephone Co., supra, as its

standard for finding state law in diversity cases, the Third

Circuit has invited every plaintiff and defendant who is

faced with unfavorable state law to seek the diversity juris-

diction of the federal courts. Departure from the West

requirement that federal courts follow state intermediate

appellate decisions absent convincing evidence that they

*Curiously, the Third Circuit once recognized, in an opinion

ignored by subsequent Third Circuit decisions, the restrictions inher-

ent in the Bosch ruling. Thus, in Springfield St. Bank v. National St.

Bank of Elizabeth, 459 F.2d 712, 718 (3d Cir. 1972), the court stated the

following concerning the Bosch decision:

That case involved federal estate tax liability and presented a

federal question which makes it wholly distinguishable from the

present case. It is well settled that where, as here, state law

governs, a federal court may not decline to accept a rule

announced by a court of intermediate appeal deciding a state

question.

would be rejected by the state’s highest court promises ero-

sion of the Ere uniformity principle and an unwholesome

impetus to federal forum shopping by parties with state

claims.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinions of the Court of Appeals

for the Third Circuit.

Respectfully submitted,

HarRoLp R. TYuer, JR.

PATTERSON, BELKNAP, WEBB & T'YLER

30 Rockefeller Plaza

New York, New York 10112

(212) 541-4000

Counsel for Petitioner

Of Counse::

Davip F. DoBBINs

THEODORE B. VAN ITALLIE, JR.

August 1, 1980

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-2567

SONDRA L. McKENNA and

JAMES R. McKENNA, Appellants

ORTHO PHARMACEUTICAL CORPORATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

C.A. No. 74-0808

Argued September 5, 1979

Reassigned January 2, 1980

Before: ADAMS, HUNTER and HIGGINBOTHAM.

Circuit Judges

(Filed March 18. 1980)

JOHN E. EVANS, JR. (Argued)

Evans, Ivory & Evans

Pittsburgh, Penna. 15219

Attorney for Appellants

G. DANIEL CARNEY

Thorp, Reed & Armstrong

Pittsburgh, Penna. 15219

DAVID F. DOBBINS

Patterson, Belknap, Webb & Tyler

New York, New York 10020

ROBERT W. SPARKS (Argued)

Johnson & Johnson

New Brunswick, N.J.

Attorneys for Appellee

a.l

OPINION OF THE COURT

ADAMS, Circuit Judge.

After trial, but prior to the presentation of the case to

the jury, the district court in this diversity case granted

defendants’ motion for a directed verdict on the ground

that Ohio law barred recovery. Because we are persuad-

ed by a careful review of the Ohio decisional law, as well

as other relevant sources, that the Supreme Court of

Ohio would not construe its statute of limitations so as to

preclude recovery in this case, we reverse.

James and Sondra McKenna brought this suit for

negligence, misrepresentation, and products liability

against Ortho Pharmaceutical Corporation (Ortho). The

plaintiffs charged that Mrs. McKenna suffered severe

personal injury and permanent disability as a result of

ingesting Ortho-Novum, an oral contraceptive manufac-

tured and marketed by Ortho. Following the birth of the

McKennas’ second child, Mrs. McKenna began using

Ortho-Novum in January 1965, after receiving assur-

ances both from Ortho’s published brochure and from

her personal physician, that the drug was safe and posed

no serious risks. In 1967, Mrs. McKenna developed se-

vere headaches and also experienced two attacks of tran-

sient ischemia. While hospitalized in 1969 for a stomach

ailment involving vessel wall damage, Mrs. McKenna

was told that she had high blood pressure, that was char-

acterized as hypertension. In June 1969, Mrs. McKenna

ceased using the oral contraceptives. Three years later,

in March 1972, she suffered a catastrophic cere-

brovascular stroke that left her severely and permanent-

ly paralyzed. !

1. ‘The complaint alleged that as a direct result of her use of

Ortho-Novum, Mrs. McKenna suffered the following permanent in-

a. 2

One year and nine months thereafter, in November

1973, the McKennas commenced this action in a Penn-

sylvania state court by a praecipe for a writ of trespass.*

On Ortho’s motion, the suit was removed to the federal

district court in Pittsburgh, where it was ultimately

tried. The plaintiffs claimed that Mrs. McKenna’s inju-

ries were caused by her ingestion of Ortho-Novum; that

Mrs. McKenna relied on Ortho's false assurances about

the product’s safety in deciding to use Ortho-Novum;

that Ortho knew or should have known that these state-

ments were false; and that Ortho-Novum posed a risk of

serious harm to its users.

Prior to trial, the district court denied Ortho’s mo-

tion for summary judgment on the ground that a genu-

ine issue of material fact existed as to whether the

McKennas knew, or reasonably should have known,

more than two years prior to the commencement of the

suit, that Mrs. McKenna’s injuries resulted from the in-

gestion of Ortho-Novum. During the four weeks of jury

trial, the McKennas introduced expert witnesses who

testified that the cerebrovascular stroke was the ultimate

result of either vessel-wall damage or high blood pres-

sure, and that both of these conditions, as well as the

headaches and transient ischemia attacks, were caused

by Mrs. McKenna’s ingestion of Ortho-Novum. At the

close of trial, but prior to submission of the case to the

jury, the district court granted Ortho’s motion for a di-

rected verdict on the ground that the action was barred

under Ohio’s statute of limitations. The district court

concluded that the Ohio statute began to run, at the lat-

est, in 1969 when Mrs. McKenna developed high blood

juries: paralysis of both legs and arms; bilateral facial paralysis;

double vision; impairment of speech; impairment of hearing; inter-

nal injuries; shock and injury to her nervous system.

2. The district court noted that inasmuch as the plaintiffs’

counsel) is a Pittsburgh attorney. “it was natural” that suit was

brought in Pennsylvania.

a. 3

pressure, and that the cause of action was accordingly

barred because it was filed more than two years after

that time. It is this conclusion that we review here.

Although Pennsylvania courts ordinarily apply the

statute of limitations of the forum state,*® the Pennsylva-

nia “borrowing statute” in effect when the case was tried

provided a statutory exception to this rule. It declared:

When a cause of action has been fully barred by the

law of the state in which it arose, such bar shall be a

complete defense to an action thereon in any of the

courts of this Commonwealth.*

3. Under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64

(1938), a federal court exercising diversity jurisdiction must apply

state rather than federal decisional law to questions of a “substan-

tive” character. In order to determine which state’s law applies, a

federal court must ascertain the substantive law that would be ap-

plied to the question by a court of the state in which it is located,

Klaxon Co. v. Stanton Elec. Mfg. Co., 313 U.S. 487 (1943), in this

case Pennsylvania. Inasmuch as all of the significant events perti-

nent to this action occurred in Ohio. it is not disputed that the cause

of action arose in Ohio and that under Pennsylvania's conflict of law

rules, see Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796

(1964). the substantive law of Ohio governs this action.

4. Pa. Stat. Ann. tit. 12. § 39 (repealed 1978).

This provision was replaced bv a similar provision which pro-

vides that:

(b) General rule — The period of limitation applicable to a

claim accruing outside this Commonwealth shall be either that

provided or prescribed by the law of the place where the claim

accrued or by the law of this Commonwealth, whichever first

bars the claim.

42 Pa. Cons. Stat. Ann. §5521 (eff. June 27, 1978).

Section 39 remains determinative in this action, because of a

savings clause which provides:

No cause of action fully barred prior to the effective date of

this Act shall be revised by reason of the enactment of this

Act.

a.4

FS)

The district court, in granting Ortho’s motion for a di-

rected verdict, reasoned that the Pennsylvania statute

borrowed not only Ohio's two-year limitations period, but

also Ohio’s law governing the determination when the

cause of action arises. In their appeal, the McKennas

contend that this was error; they argue that even though

the Pennsylvania statute “borrows” the law of Ohio re-

garding the length of the applicable limitations period,

the question when that limitations period begins to run

must be determined not by Ohio but by Pennsylvania

law.

The McKennas premise their argument on this

Court’s prior decision in Mack Trucks, Inc. v.

Bendix-Westinghouse Automotive Air Brake Company.°

In Mack Trucks, we were asked to decide when an ac-

tion for indemnity arose, for the purpose of determining

whether the Pennsylvania “borrowing statute” was ap-

plicable to that action. Noting the “familiar rule” that a

statute of limitations “begins to run when the cause of

action arises, as determined by the occurrence of the fi-

nal significant event necessary to make the claim su-

able,” we held that a “cause arises where as well as when

the final significant event that is essential to a suable

claim oczurs.”® Because the final significant event es-

sential to the action for indemnity happened in Florida,

we concluded that Florida’s statute of limitations

applied. |

Mack Trucks’ application of the Pennsylvania “bor-

rowing statute,” the McKennas claim, depended upon

the ascertainment of where the cause of action arose,

which in turn was based on the prior determination of

when it accrued. In support of this interpretation, the

Act of July 9, 1976, P.L. 586, No. 142, §25(b), reprinted in 42

Pa. Cons. Stat. Ann. §5521 note.

5. 372 F.2d 18 (3d Cir. 1966).

6. 372 F.2d at 20.

a. 5

McKennas rely on Prince v. Trustees of the University

of Pennsylvania,’ which held, on the basis of Mack

Trucks, that the “borrowing statute” applies “only upon

satisfaction of two contingencies: (1) the cause of action

must arise in another state; and (2) the cause of action

must be totally barred by the law of that state. Under the

Mack Truck analysis,” the district court concluded, “sat-

isfaction of the first contingency is determined by find-

ing where the cause of action arose, and the determina-

tion is to be governed by Pennsylvania law.”®

The crux of the justification offered for this con-

struction of Mack Trucks is the assertion that we deter-

mined when the cause of action arose in that case by

references to Pennsylvania law. But, as the most recent

decision addressing this issue points out, “Mack Trucks

relied not only on Pennsylvania cases but also on cases

from other jurisdictions.”? Nor was there any suggestion

in Mack Trucks that Florida would have commened the

running of the statute of limitations at a time different

from when Pennsylvania would have. Inasmuch as

Mack Trucks did not even discuss this issue, we do not

find that decision controlling here.

We are persuaded, rather, that the apparent pur-

pose of the Pennsylvania “borrowing statute” requires us

to look to the law of the state where the cause of action

arose to determine not only the prescribed period of limi-

tations but also the point at which the statute begins to

run. By its terms, the “borrowing statute” bars a plaintiff

from suing in Pennsylvania “when [the] cause of action

has been fully barred by the laws of the state. . . in

which it arose... .” In our view, the essential question

posed under the “borrowing statute” is whether the ac-

tion in question is precluded by the laws of the state in

7. 282 F. Supp. 832 (E.D. Pa. 1968).

8. 288 F. Supp. at 840.

9. Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp,

453 F. Supp. 527, 532 (W.D. Pa. 1978).

a. 6

which it accrued, and the answer to that question must

be based on the law of the state in which the claim arose

as well. To do otherwise might well revive an action

which is “fully barred by the laws” of another state. Ac-

cordingly, because the McKennas'’ cause of action arose

in Ohio, we must look to Ohio law to determine when

Ohio’s statute of limitations commenced to run. And the

question for decision, then, is whether Ohio's statute of

limitations commenced to run prior to the date Mrs. Mc-

Kenna knew, or reasonably should have discovered, that

her injuries were caused by Ortho-Novum. '°

Given that Ohio law governs the question for deci-

sion, the task remains to determine what the pertinent

Ohio law is and then to apply it to this controversy. The

question of how a federal court is to ascertain and apply

state decisional law to a particular case has provoked

considerable comment from courts and commentators

alike.'' As some have noted, the concept that a federal

10. The Ohio statute of limitations applicable to Sondra

Mckenna's claim is Ohio Rev. Code Ann. §2305.10 (Page 1954),

which provides:

An action for bodily injury or injuring personal property shall

be brought within two years after the cause thereof arose.

The pertinent statute for James McKenna's derivative claim is Ohio

Rev. Code Ann. §2305.09 (Page 1954), which provides in part:

An action for any of the following causes shall be brought with-

in four vears after the cause thereof accrued:

(D) For an Jajurvy to the rights of the plaintiff not arising on

contract nor enumerated in fjother] sections... of the Re-

vised Code.

Ll. See. e.g., Commissioner vo Estate of Bosch, 387 U.S. 456

(1967); Bernhardt vv. Polygraphic Co. of America. 350 U.S. 198

(1955); Becker v. Interstate Properties. 569 F.2d 1203 (L977): C.

Wright, Law of Federal Courts, § 158, at 267-71 (3d ed. 1976): 1A,

Moore's Federal Practice, para, 0.309, 3323-3330 (2d ed.) and id.

73-74 (1978-79 Supp.): Kurland. Mr. Justice Frankfurter. The Su-

a.7

court must determine state law is somewhat misleading

inasmuch as it implies the existence of a readily accessi-

ble and easily understood body of state law.'? On the

contrary, the law of a state is frequently “dynamic rather

than static,”'* and consists of a working body of rules,

which find expression in a number of sources. It is this

working body of rules to which a federal court must look

in order to ascertain the state law that governs in a par-

ticular case.

In those few instances in which the highest state

court has regently spoken to the precise question at is-

sue inap ular setting, the duty of the federal court to

determine and apply state law is easily met. After all,

“\t]he State’s highest court is the best authority on its

own law.”'* The problem of ascertainment arises when,

as here, the highest state court has not yet authoritative-

ly addressed the critical issue. Recent opinions of this

Court make clear that our disposition of such cases must

be governed by a prediction of how the state’s highest

court would decide were it confronted with the prob-

lem.'? Although some have characterized this assign-

NOTE 11 — (Continued)

preme Court and the Erie Doctrine in Diversity Cases, 67 Yale L. J.

187 (1957); Note, Federal Interpretation of State Law — An Argu-

ment for Expanded Scope of Inquiry, 53 Minn. L. Rev. 806 ( 1969).

12. See, e.g., Note, Federal Interpretation of State Law — An

Argument for Expanded Scope of Inquiry, 53 Minn. L. Rev. 806.

811 (1969).

13. Id.

14. Commissioner v. Estate of Bosch, 387 U.S. 456, 465

(1965). “If there be no decision by that Court then federal authori-

tics must apply what they find to be the state law after giving ‘proper

regard’ to relevant rulings of other courts of the state." Jd The Erie

Court expressly intended that federal courts were to be governed by

the law of each state whether it “be declared by its legislature cr by

its highest court in a decision.” 304 U.S. 64 7! (1938)

15. E.g., Becker v. Interstate Properties, 569 F.2d 1203, 1205

(3d Cir. 1977) (“Inasmuch as no New Jersey cases are squarely on

point, it is important to make cleay that our disposition of this case

must be governed by a prediction of what a New Jerse. court would

a. 8

ment as speculative or crystai-bail gazing. nonetheless it

is a task which we may not decline.

An accurate forecast of Ohio’s law, as it would be

expressed by its highest court, requires an examination

of all relevant sources of that state’s law in order to iso-

late those factors that would inform its decision. The pri-

mary source that must be analyzed, of course, is the

decisional law of the Ohio Supreme Court. In the ab-

sence of authority directly on point, decisions by that

court in analogous cases provide useful indications of

the court’s probable disposition of a particular question

of law. It is important to note, however, that our predic-

tion “cannot be the product of a mere recitation of pre-

viously decided cases.”'® In determining state law, a fed-

eral tribunal should be careful to avoid the “danger” of

giving “a state court decision a more binding effec: thai

would a court of that state under similar circum-

stances.”'’ Rather, relevant state precedents must be

do if confronted with the facts before us.”). Huddell v. Levin, 557

F.2d 726. 733 (3d Cir. 1976) (“This appeal requires us to predict

how the New Jersey Supreme Court would react when presented

with novel and difficult questions of tort law."); Wise v. George C.

Rothwell, Inc.. 496 F.2d 384, 387 (3d Cir. 1974) (“We are bound to

apply the standard of care the Deiaware Supreme Court would ap-

ply were it faced with the issue now before us.”). Our position is in

accord with the rule accepted by a majority of the other Circuits.

E.g., Soo Line R. Co. v. Fruehaut Corp., 547 F.2d 1365 (8th Cir.

1977); Gates Rubber Company v. USM Corp., 508 F.2d 603 (7th

Cir. 1975); Warren Bros. Co. v. Cardi Corp., 471 F 2d 1204 (1st Cir

1973).

It is regrettable that Ohio has not vet established a certificaticr

procedure that would enable this Court to obtain a detinitive answer

to the crucial question in this case from the Ohio Supreme Court.

The United States Supreme Court has expressed its approval of

such a procedure. Lehman Bros. v. Schein. 416 U.S. 386, 390-91}.

394-95 (1974).

16. E.g., Becker vy. Interstate Properties. 569 F.2d 1203.

1205-06 (3d Cir. 1977).

17. LA Moore's Federal Practice. para. 0.307, at 3077 (2d ed.

1979).

a.9

scrutinized with an eye toward the broad policies that in-

formed those adjudications, and to the doctrinal trends

which they evince. '®

Considered dicta by the state’s highest court may

also provide a federal court with reliable indicia of how

the state tribunal might rule on a particular question. '®

Because.the highest state court “enjoys some latitude of

decision in ascertaining the law applicable to a particular

dispute even where there may be dicta in point,””° how-

ever, a federal court should be circumspect in surrender-

ing its own judgment concerning what the state law is

on account of dicta. As Professor Charles Alan Wright

has written, “much depends on the character of the dic-

tum.”*! Of somewhat less importance to a prognostica-

tion of what the highest state court will do are decisions

of lower state courts and other federal courts. Such deci-

sions should be accorded “proper regard” of course, but

not conclusive effect.2? Thus, the Supreme Court has

held that although the decision of a lower state court

“should be ‘attributed some weight . . . the decision [is]

not controlling .. .” where the highest court of the State

has not spoken on the point. .. . Thus, under some con-

ditions, federal authority may not be bound even by an

18. Becker v. Interstate Properties, 569 F.2d 1203, 1206 (3d

Cir. 1977); Medvecz v. Choi, 569 F.2d 1221, 1226 n.14 (3d Cir.

1977).

19. Nolan v. Transocean Air Lines, 365 U.S. 293 (1961).

20. 1A Moore’s Federal Practice, para. 0.307, at 3097 (2d ed.

1979).

21. C. Wright, Law of Federal Courts, §58, at 270 (3d ed.

1976) (“Mere obiter may be entitled to litthe weight, while a careful-

ly considered statement by the state court, though technically dic-

tum, must carry great weight, and may even, in the absence of any

conflicting indication of the law of the state, be regarded as conclu-

sive.” ) (footnotes omitted).

22. See Commissioner v. Estate of Bosch, 387 U.S. 456, 471

(1951).

a. 10

intermediate state appellate court ruling.”** Additional-

ly, federal courts may consider scholarly treatises,** the

Restatements of Law,?° and germane law review arti-

cles® — particularly, it seems, of schools within the

state whose law is to be predicted.’

In sum, a federal court attempting to forecast state

law must consider relevant state precedents, analogous

decisions, considered dicta, scholarly works, and any

other reliable data tending convincingly to. show how the

highest court in the state wou!d decide the issue at

hand. The rule of Erie calls on us to apply state law and

not, as the dissent notes, “to participate in an effort to

change it”*® merely because we doubt its soundness. At

the same time, however, blind adherence to state

precedents “without evaluating the decision|s] in the

light of other relevant data as to what the state law is,

will result in injustice and a perversion of the state law

which the federal court se*~ out to apply.”?° As this

Court has declared:*°

A diversity litigant should not be drawn to the feder-

al forum by the prospect of a more favorable out-

23. Id. (quoting King v. Order of Travelers, 333 U.S. 153.

160-61 (1948)), (footnotes omitted). Unlike the dissent, I am not

persuaded that the lower state court and federal court decisions re-

lied on by the defendant, see dissenting opinion at 27, either specifi-

cally address or definitively resolve the question at issue here.

24. Patch v. Stanley Works, 448 F.2d 483, 488 (2d Cir. 1971).

25. Id.; Ross v. Philip Morris & Co., 328 F.2d 313 (8th Cir.

1964).

26. Southern Farm Bureau Cas. Ins. Co. v. Mitchell, 312 F.2d

485, 497 (8th Cir. 1963); Wendt v. Lillo, 182 F. Supp. 56-60 (N.D.

lowa 1960).

27. Note, Federal Interpretation of State Law — An Argument

for Expanded Scope of Inquiry, 53 Minn. L. Rev. 806 (1976).

28. Tarr v. Manchester :ns. Corp., 544 F.2d 14, 15 (1st Cir

1978); majority opinion at 11.

29. 1A Moore’s Federal Practice, §0.309, 3112 (2d ed. 1979).

30. Becker v. Interstate Properties, 569 F.2d 1203. 1206

(1977).

a.1l

come than he cou!'d expect in the state courts. But

neither should he be penalized for his choice of the

federal court by being deprived of the flexibility that

a state court could reasonably be expected to show.

IV.

In support of its conclusion that Ohio’s statutes of

limitation bar the McKennas’ actions, the district court

relied, as does the dissent here, primarily on Wyler v.

Tripi,*' decided nine years ago by the Ohio Supreme

Court. The central dispute in that case concerned the

date on which a cause of action for medical malpractice

accrued. Expressly following the rule announced in a se-

ries of prior decisions,** Wyler held that the cause of ac-

tion came into existence at the latest, at the time the

physician-patient relationship terminated, and not when

the plaintiff discovered the injury.

The “termination of treatment” concept was devel-

oped very early in Ohio law** as an exception to the tra-

ditional rule that statutes of limitation commenced to

31. 25 Ohio St. 2d 164, 267 N.E. 2d 419 (1971).

32. 25 Ohio St. 2d at 164, 267 N.E. 2d at 419, following

DeLong v. Cambell, 157 Ohio St. 22, 104 N.E. 2d 177 (1952); Bow-

ers v. Santee, 92 Ohio St. 361, 124 N.E. 238 (1919); Gillette v.

Tucker, 67 Ohio St 106 65 N E. 865 (1902).

The Ohio Supreme Court's consideration of the application of

the ‘discovery rule” to statutes of limitations thus far has occurred

solely in the context of actions for medical malpractice involving

Ohio Rev. Code Ann §2305.11 (Page 1954), rather than in the con-

text of personal injury negligence actions under Ohio Rev. Code

Ann. 2305.10 (Page 1954). The Ohio Supreme Court has noted,

however, that the limitation-of-action question “obtains, in princi-

ple, irrespective of whether the case is treated as belonging under

R.C. 2305.10 or under R.C. 2305.11." Melnyk v. Cleveland Clinic,

32 Ohio St.2d 198, 201 n.1, 290 N.E.2d 916, 917 n.1 (1973).

33. See Gillete v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (1902).

a. 12

run at the time an individual sustained injury as the re-

sult of the tortious act of another.** It was designed, as

the Wyler court observed, “to avoid the harsh results of

the traditional rule”*® by tolling the applicable statute of

limitations until the conclusion of the physician-patient

34. See. e.g. Fee’s Administrator v. Fee, 10 Ohio 469 (1891)

(action for trespass on property). In the usual case — when the act

constituting negligence causes direct and immediate injury — the

action accrues and the period of limitations runs from the date of

the act. When the negligent act is injurious only in its conse-

quences, however, Ohio courts have held that the cause accrues

and the ‘imitations run only from the time that some consequential

injury or damage manifests itself. In Cook v. Yager, 13 Ohio App. 2d

1, 233 N.E. 2d 326 (1968), for example, the syllabus stated that

where the negligent act “causes no contemporaneous injury or

damage to the patient but the forces set in motion by such violation

proximately cause injury or damage thereafter, then, .. . the cause

and the statute of limitations pertaining to the cause of action does

not begin to run until the date such consequential injury or damage

first manifests itself. 13 Ohio App. 2d. at 10-11, 233 N.E. 2d at 332;

see Brush v. Beryllium Co., 284 F.2d 797 (6th Cir. 1960). This prin-

ciple of Ohio law apparently accords with the majority rule:

As a general rule, the occurrence of an act or omission, whether

it is a breach of contract or of duty, whereby one sustains a di-

rect injury, however slight, starts the statute of limitations run-

ning against the right to maintain an action. It is sufficient if

nominal damages are recoverable for the breach or for the

wrong, and where that is the case it is unimportant that the ac-

tual or substantial damage is not discovered or does not occur

until later.

51 AM. JUR. 2d Limitation of Actions §109, at 681 (1970).

In the present case, the district court determined that consequential

injury or damage resulting from Mrs. McKenna's ingestion of

Ortho-Novum manifested itself, at the latest, in 1969 when Mrs.

McKenna developed hypertension. Although the classification of

this development, rather than the occurrence of Mrs. McKenna’'s

transient ischemia attacks or excruciating headaches or, for that

matter, the occurrence of the c »rebrovascular stroke in 1972, as the

first manifestation of consequential injury or damage seems some-

what arbitrary, it nonetheless appears consistent with the applicable

principles of Ohio law.

35. 25 Ohio St.2d at 168, 267 N.E.2d at 421.

a. 13

relationship. Although this doctrine represents a

“marked departure from the general rule,” it “affords lit-

tle relief in cases where the injury is one which requires

a long developmental period before becoming dangerous

and discoverable.”*© In such cases, the termination ex-

ception extends the period before the statute of limita-

tions begins to run, “but does so by a factor which bears

no logical relationship to the injury incurred.’”?’”

It was this kind of issue with which the Ohio Su-

preme Court was confronted in Wyler. The plaintiff

there alleged that improper treatment by her physician

ultimately resulted in the manifestation of asceptic

necrosis, necessitating the replacement of her hip and

the subsequent removal of her leg. Because the plaintiff

failed to discover the alleged negligence within a year

after she left the care of her physician, application of ei-

ther the traditional rule or the “termination of treat-

ment” exception would not prevent what the Wyler ma-

jority itself termed “the unconscionable result that the

injured party’s right to recovery can be barred by the

statute of limitations before [s|]he is even aware of its ex-

isterce.”** Troubled by this result, the Ohio court exam-

ined the laws of various jurisdictions and the growing

trend away from the traditional rule and towards adop-

tion of the discovery rule. According to this approach,

the statute of limitations does not begin to run until the

plaintiff actually discovers, or with due diligence should

have discovered, the negligence alleged.

Although the court’s examination of the cases per-

suaded it that “there is much to recommend the adop-

tion of the discovery rule,”*’ a bare majority nonetheless

“reluctantly conclud|ed]” that “the courts of Ohio should

not decree such an adoption.””° The sole justification for

36. Id.

37. Id.

38. Id.

39, 25 Ohio St.2d at 170-71, 267 N.E.2d at 423.

40. Id.

a. 14

refusing to adopt the discovery rule was that such action

should be left to the legislature. The court was “con-

vinced that to [adopt the discovery rule] would place |it]

in the obvious and untenable position of having not only

legislated, but of having done so directly in the face of a

clear and opposite legislative intent.”*' Referring to the

legislature's failure to adopt the discovery rule by legisla-

tion, the court concluded: “In consideration of the obvi-

ous and repeated disinclination of the General Assembly

to amend its malpractice statute of limitations, we are

compelled to adhere to our former decisions on the ques-

tion and refrain from judicially adopting that which has

so clearly been legislatively rejected.”*

Notwithstanding this extensive pronouncement of

the court’s position, this same court during the following

year employed the discovery rule in Melnyk v. Cleveland

Clinic.** The plaintiff there alleged that a physician em-

ployed by the Clinic had negligently left a metallic for-

ceps and a nonabsorbent sponge in his abdomen. Even

though the plaintiff failed to discover the negligence un-

til more than one year after he left the care of the physi-

cian, the Ohio Supreme Court refused to bar his action,

and held that the applicable one-year statute of limita-

tions was tolled “until such time as the patient discovers,

or by exercise of reasonable diligence should have dis-

covered, the negligent act.”**

Although the Melnyk court took great pains, as does

the dissent in this case, to distinguish Melnyk from

Wyler on the ground that the former did not involve the

“problems faced in the defense of a ‘stale’ claim for medi-

cal malpractice,”*® the distinction, as a recent commen-

tator on Ohio law has argued, “in essence is an artificial

one.” On the contrary, Wyler expressly took note of the

41. ld.

42. 25 Ohio St.2d at 172, 267 N.E.2d at 424.

43. 32-Ohio St.2d 198, 290 N.E.2d 916 (1972).

44. 32 Ohio St.2d at 201, 290 N.E.2d at 918.

45. 32 Ohio St.2d at 200, 290 N.E.2d at 916.

46. 6 Akron L. Rev. 265, 273 (1973).

a. 15

fact that courts adopting the discovery doctrine viewed it

“as being entirely consistent with the policy of the stat-

ute of limitations to prevent ‘stale claims.’ "*’ The hold-

ing of Wyler declining to adopt the discovery rule

depended not at all on the policy of discouraging stale

claims, but solely upon the court’s reluctance to contra-

vene what it then believed to be the policy of the state

legislature. By embracing the discovery rule in Melnyk,

therefore, the Ohio Supreme Court “completely aban-

doned the rationale which served as the basis and justifi-

cation for the Wyler decision, namely, that of legislative

prerogative in this area.”*®

Melnyk’s implicit rejection of the Wyler rationale —

that only the state legislature may properly decide

whether to apply the discovery rule — appears well justi-

fied. As evidence of the alleged intent of the legislature

to eschew the discovery rule, Wyler referred to the legis-

lature’s failure to enact legislation modifying the court’s

prior decisions that interpreted the statute of limitations

for medical malpractice.*? Legislative inaction, however,

“is a weak reed upon which to lean in determining legis-

lative intent.”©° A statute of limitations is a product of

legislation, but it is the judiciary’s task to interpret and

enforce such an enactment. The Ohio statute in ques-

tion here is phrased in general terms and requires only

that an action for bodily injury “shall be brought within

two years after the cause thereof arose.”°' The legisla-

ture left unresolved when a cause of action arises and

47. 25 Ohio St.2d at 170, 267 N.E.2d at 423.

48. 6 Akron L. Rev. 265, 272 (1973).

49. 25 Ohio St.2d at 171-72, 267 N.E.2d 419, 423-24.

50. Berry v. Branner, 245 Or. 307, 311, 421 P.2d 996, 998

(1966).

51. Ohio Rev. Code Ann. §2305.10 (Page 1954). The provision

pertinent to Mr. McKenna’s derivative claim is similarly phrased,

but states that such actions “shall be brought within four years after

the cause thereof occurred. .. .” Ohio Rev. Code Ann. §2305.09

(Page 1954).

a. 16

when the statute commences to run. And, in Ohio, these

kinds of determinations have always been the product of

“judicial interpretation, not legislative promulgation.”°?

Consequently, application of the discovery rule to the

facts of this case in no way intrudes on the authority of

the state legislature. Indeed, Ohio’s selection of the ter-

mination exception represented not only a marked de-

parture from the traditional rule, but also a judicial de-

termination as to when a cause of action accrues.

Melnyk’s choice of the discovery rule, at least in the ab-

sence of an expression by the legislature prohibiting

such an adoption, therefore appears fully compatible

with the court’s responsibility to ascertain and comply

with legislative intention.**

Moreover, the Ohio Supreme Court in Melnyk dis-

tinguished its decision in Wyler as speaking only to the

question of when a cause of action arises, and not to the

determination whether the running of the statute of

52. 6 Akron L. Rev. 265, 273 (1973).

53. A further indication that the legislature did not intend to

preclude judicial adoption of the discovery doctrine was provided by

the recent amendment of the medical malpractice statute. Even

though that statute still allows a one vear period of limitations for

such actions, the judiciary’s role in determining when a cause of ac-

tion arises and when the limitations period begins to run is implicit-

ly recognized by a new provision which expressly provides that “in

no event shall any medical claim against a physician . . . be brought

more than four years after the act or omission constituting the al-

leged malpractice occurred.” Ohio Rev. Code Ann. §2305.11(B)

(Page Supp. 1978).

Moreover, without deciding the issue the court in Melnyk sug-

gested that as a result of an amendment to the Ohio Constitution,

Ohio’s statutes of limitation may now have “become the sole de-

mesne of the [Ohio Supreme] Court.” 32 Ohio St.2d at 200 n.3, 290

N.E.2d at 917 n.3. As amended, Article IV, Section 5(B) of the Ohio

Constitution now provides in part: “The supreme court shall pre-

scribe rules governing practice and procedure in all courts of the

state, which rules shall not abridge, enlarge or modify any substan-

tive rights.”

a.17

limitations is, for some reason, tolled.°* It then

proceeded to hold that the running of the statute of limi-

tations on Melnyk’s cause of action was tolled until such

time as he discovered, or by the exercise of reasonable

diligence should have discovered, the negligent act,

even though his cause of action accrued, under Wyler,

at the termination of the patient-physician relationship.

On this analysis, the holding in Wyler determines only

when the McKennas’ cause of action accrued; it is inap-

posite to the question whether the action was tolled until

such time as the McKennas could know how Mrs.

McKenna’s injuries occurred.

It is claimed, nonetheless, that “Melnyk does not

overrule Wyler, but “merely carves out a very specific

and narrow exception’”®°> to the termination rule when,

as in that case, surgical instruments are left in a pa-

tient’s body. For this reason, the dissent would not apply

the discovery rule to the circumstances of this case. In

its view, we are improperly modifying a “decadent” and

“unenlightened” doctrine of state law simply because we

disagree with it. On the contrary, however, we fully rec-

ognize our responsibility to accurately apply the perti-

nent Ohio law. Indeed, we do not dispute that federal

courts must faithfully adhere to state substantive law in

non-federal matters. But, as commentators have empha-

sized, such adherence should be wise and discerning.

This Court has noted only recently that “while a federal

diversity court must not fashion a wholly independent

federal standard with which to determine matters of

substantive right, it likewise must not conceive of its role

as applying the state decisional law to the case at hand in

54. Under the longstanding Ohio “syllabus rule,” only that

which is stated in a syllabus or in an per curiam opinion represents

an accurate and authoritative statement of law by the Ohio Su-

preme Court. E.g. In State ex rel. Canada v. Phillips, 168 Ohio St.

191, 200, 151 N.E.2d 722, 724 (1958).

55. Dissenting opinion typescript at 23.

a. 18

a narrow and mechanical fashion.”°® Rather, a federal

court must “be sensitive to the doctrinal trends of the

state whose law it applies, and the policies which inform

the prior adjudications by the state courts.”°’

In our view, the Ohio Supreme Court’s decision in

Melnyk not only abandoned the sole justification prof-

fered for its opposition in Wyler to the adoption of the

discovery rule, but also manifested a recognition that

this approach alone avoids the harsh and inequitable re-

sults of applying the traditional rule in such cases. “Cer-

tainly a federal court sitting in diversity should not me-

chanically follow precedent and blindly apply principles

of stare decisis when it appears that the corresponding

state court would adjust its common law to meet chang-

ing conditions.”°® A fair scrutiny of the relevant Ohio

precedents, with an eye toward the principles and poli-

cies underlying them, strongly indicates that the Ohio

Supreme Court would extend the discovery rule set forth

in Melynk to include the type of personal injury action

present here.

The task of a federal court sitting in diversity is of-

ten difficult, for it must forsake its own expertise and as-

sume that of the foreign state. Required as we are to pre-

dict how the Ohio Supreme Court would decide the

present case, however, we believe that the Court would

hold that the applicable statutes of limitation in this case

were tolled until the McKennas knew, or by the exercise

of reasonable diligence should have discovered, the

cause of Mrs. McKenna’s injuries. Accordingly, we re-

verse the judgment of the district court, and remand for

further proceedings consistent with this opinion

56. Medvecz v. Choi, 569 F.2d 1221, 1226 (1977).

57. Becker v. Interstate Properties, 569 F.2d 1203, 1206

(1977).

58. Id. at 1215-16 (Hunter, J., dissenting).

a. 19

A. LEON HIGGINBOTHAM, JR., Circuit Judge, dissenting.

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 desir-

able component of medical malpractice law,' I inust re-

spectfully 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 malprac-

tice 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 discov-

ery 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, |

must dissent.

Ohio courts have long held that the plaintiff's inabil-

ity to discover the tortious act of the defendant has no

relevance to the running of the applicable statute of limi-

tations. E.g., Kerns v. Schoonmuker, 4 Ohio 331 (1831)

1. 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 phvysi-

cian's actions and his injurv.

a. 20

(negliger acts of justice of the peace); 34 Ohio Juris-

prudence 2d 536. This doctrine was reaffirmed by the

Ohio Supreme Court in Wyler v. Tripi in 1971 and ap-

plied 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 invita-

tion, 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 limita-

tions before he is even aware of its existence.” 267

N.E.2d at 421. The court relied neither on a policy justi-

fication for a short period of limitations nor on humanity

considerations when it rejected the discovery rule. In-

deed it noted that “[t]here 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 unten-

able position of having done so directly in the face of

a clear and opposite legislative intent.”

Id. at 423.

2. 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 Assem-

bly (1963-64), House Bill No. 959 was introduced. Both bills

would have amended R.C. 2305.11, by increasing the limita-

tion period for malpractice to two years. Neither bill survived

the scrutiny of the committee to which it was referred. A simi-

lar fate befell House Bill No. 907, which was introduced in the

103rd General Assembly (1959-60), and was designed to elimi-

nate the statute of limitations for malpractice.

The most significant expression of legislative position oc-

curred 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 fol-

lowing language to R.C. 2305.11:

a. 21

In spite of this explicit statement the majority de-

clines to follow Wyler. It argues that the Wyler rationale

would be abandoned in a 1980 decision of the Ohio Su-

preme Court and thus it feels free to include the dis-

covery rule in its decision. I do not agree. None of the

materials the majority cites persuades me that an aban-

donment 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, de-

cided one year after Wyler. In an opinion by Justice Her-

bert, who also wrote the Wyler opinion, the court stated:

NOTE 2 — (Continued)

“If the action is for malpractice the cause thereof shall not

accrue until the malpractice is discovered.”

House Bill No. 177 waggrejected 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 gen-

eral 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 Assem-

bly 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 specifi-

cally 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. Signifi-

cantly 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 com-

mencement 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. a. 22

..., 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 limita-

tion 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 18. 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 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 Melynk 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 malprac-

tice. As in other fields of highly technical and inex-

act science, evidence in defense of such claims is

a. 23

unusually difficult to acquire and present... . [T]he

General Assembly exercised its prerogative in this

field and enacted a statute of limitation of compara-

tively brief duration. Wyler recognized the legisla-

tive 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 legis-

lative judgment on statutes of limitations. In Amer a

husband brought an action for loss of consortium be-

cause 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).*? The husband had

argued that tolling was necessary because the malprac-

tice 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

3. See Majority Opinion, Typescript at 18 n.a54, for a discus-

sion of the importance of the court's syllabus.

a. 24

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 dis-

covery 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 major-

ity of the court to reject the legislative decision.

The Amer decision convinces me that the Ohio Su-

preme Court has not abandoned its decision not to “in-

terfere in the affairs of [its] sister branch [of] govern-

ment.” Melnyk, 290 N.E.2d at 918. Further it shows that

whether or not the Oregon courts feel that legislative in-

action “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 16, the Ohio Supreme

Court has chosen to lean on it.

Finally, I am convinced that the majority reading of

the Melnyk decision is incorrect because every state or

federal court decision in Ohio on this question has re-

jected that reading, e.g., Simmons v. Riverside Method-

ist 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),

affd mem. No. C.A. 4772 (Ct.App. Sept. 12, 1975);

Shrewsbury v. Smith, 511 F.2d 1058 (6th Cir. 1975), in-

cluding those courts that have considered claims for in-

juries allegedly resulting from birth control pills. E.g.,

Gillan v. Searle Laboratories, Civ. No. C-2-77-863 (S.D.

Ohio, Oct. 13, 1978).

a. 25

The instant case reflects the inherent disadvantage

of a plaintiff making the tactical decision to litigate a di-

versity case in a federal court? where the core of plain-

tiffs case is contingent upon a federal court anticipating

a state law doctrine in the “womb of time, but whose

birth is distant.”° For we have been asked here to deliver

prematurely a new Ohio statute of limitations doctrine

4. I recognize that plaintiff originally filed suit in a Pennsvlva-

nia 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 na-

scent concepts of state tort liability, [and] demonstrat|ing] again the

impracticality of the federal diversity forum in the twentieth cen-

tury.” 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 li-

ability 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.

5. Ina somewhat related context Judge Learned Hand stated:

Nor is it desirable tor 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 con-

ceive 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 US.

LO} (1944).

a. 26

despite the fact that that concept has been expressly re-

jected, and recently so, by everv state and federal court

in Ohio.® 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 enlight-

ened trends. But if counsel wants to test whether Ohio

will have more enlightened views on the statute of limi-

tations issues, it is far better for counsel to litigate those

issues in the state courts of Ohio which have the final

sav on when their recently expressed views will be

repudiated.

For the reasons expressed above I respectfully

dissent.

6. See page 25, supra.

a. 27

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-2567

SONDRA L. McKENNA and

JAMES R. McKENNA,

Appellants

ORTHO PHARMACEUTICAL CORPORATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

C.A. No. 74-0808

Argued September 5, 1979

Reassigned January 2, 1980

Before: ADAMS, HUNTER and HIGGINBOTHAM,

Circuit Judges

(Filed June 17, 1980)

SUPPLEMENTAL OPINION SUR THE DENIAL

OF THE PETITION FOR REHEARING

ADAMS, Circuit Judge.

Shortly after the opinions in this matter were filed,

Counsel for Ortho Pharmaceutical Corporation brought

to the attention of the Court the fact that the Governor of

Ohio on March 13, 1980, signed into law a bill amending

§2305.10 of the Ohio Rev. Code. While that section still

states, as before, that “[a]n action for bodily injury or in-

juring personal property shall be brought within two

a. 28

”

years after the cause thereof arose,” the amendment

now provides further that:

For purposes of this section, a cause of action

for bodily injury caused by exposure to asbestos or

to chromium in any of its chemical forms arises

upon the date on which the plaintiff is informed by

competent medical authority that he has been in-

jured by such exposure, or upon the date on which,

by the exercise of reasonable diligence, he should

have become aware that he had been injured by the

exposure, whichever date occurs first.

Relying primarily on this amendment, Ortho submitted

a petition for rehearing claiming that this provision re-

moves the basis for our decision that “the Ohio Supreme

Court would extend the discovery rule set forth in

Melnyk v. Cleveland Clinic, 32 Ohio St. 2d 198, 290 N.E.

2d 916 (1972) to include the type of personal injury ac-

tion present here.” (Majority opinion typescript at 19).

The panel requested the McKennas to file an answer to

Ortho’s petition. After reviewing the parties’ briefs in

light of the amendment to §2305.10, we adhere to our

original position.

Prior to the amendment in question, §2305.10 re-

quired that an action for bodily injury “shall be brought

within two years after the cause thereof arose.” Regard-

ing the question when a cause of action arises, however,

the statute was silent. In amending this provision, the

legislature specifically stipulated that a cause of action

for bodily injury caused by exposure to asbestos or to

chromium arises upon the date on which the plaintiff is

informed or reasonably should have become aware that

he was injured by the exposure.

Ortho argues that this amendment represents a

clear legislative pronouncement that the “Ohio courts

are to apply a discovery rule in the two enumerated cate-

gories of cases and none other.” Invoking the precept of

expressio unius est exclusio alterius, Ortho relies on 50

a. 29

Ohio Jurisprudence 2d §188 to support its contention

that in Ohio the specific enumeration by the legislature

of items in a statute, implies the exclusion of others.

Ortho then concludes, in effect, that the legislature, in

specifically postponing the time when a cause of action

arises in cases involving injury resulting from asbestos

or chromium, thereby precluded application of the dis-

covery rule in all other cases.

As the section immediately following that relied on

by Ortho points out, however, “(t]he maxim ‘expressio

unius est exclusio alterius’ is not of universal application

and caution should be exercised in its use,” id. §189 at

166-67. In our view, the cautious and more reasonable

construction of the amendment, as well as the one we

believe the Ohio Supreme Court would embrace, is that

it was not meant to preclude judicial adoption of the dis-

covery rule in appropriate circumstances. Adoption of

the contrary construction would effectively abrogate that

court’s well-established principle, expressly reaffirmed

in Wyler v. Tripi, 25 Ohio St. 2d 164, 267 N.E. 2d 419

(1971), that a cause of action for medical malpractice

arises, at the latest, when the physician-patient relation-

ship terminates. We believe the Ohio Supreme Court

would hold that if the legislature had intended, by its

passage of this amendment, not merely to extend greater

protection to victims of asbestos and chromium poison-

ing but at the same time to deprive victims of medical

malpractice of the protection they currently enjoy under

the Ohio Supreme Court’s decisional law, it would have

done so expressly and not by implication.

ven if the amendment to §2305.10 does — by indi-

cating specifically when a cause of action arises in cases

of asbestos or chromium poisoning — effectively estab-

lish just when a cause of action must arise in all other

cases, however, that would not affect our decision here.

For we accepted the district court’s determination that

the McKennas’ causes of action arose at the time conse-

a. 30

quential injury resulted from Mrs. McKenna’s ingestion

of Ortho-Novum. Nevertheless, we held that the Ohio

Supreme Court would decide that the applicable statutes

of limitation were tolled until the McKenna’s knew, or by

the exercise of reasonable diligence should have discov-

ered, the cause of Mrs. McKenna’s injuries. In so doing,

we expressly followed the distinction drawn by the Ohio

Supreme Court in Melnyk between the question when a

cause of action arises and the determination whether the

statute of limitations may, for some reason, be tolled on

such action. Since the amendment at issue, even if it im-

plicates the question when a cause of action for bodily

injury from birth control pills arises, does not affect the

determination whether the statute of limitations respect-

ing that action may be tolled, we adhere to our prior

opinion.

Judge Hunter joins in this opinion.

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 indi-

cated 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 legislative poli-

cy.” Wetzel v. Weyant, 41 Ohio St.2d 135, 323 N.E.2d

711, 713 (1975).

As is noted by the majority, the Ortho Pharmaceuti-

cal Corporation brought to the attention of this court leg-

islation which amends Ohio’s statute of limitations,

§2305.10 Ohio Rev. Code, to inciude a discovery period

for two types of injury, those caused “by exposure to as-

bestos or to chromium.” This legislation is irreconcilable

a. 31

with the panel’s rationale. It clearly evidences an inten-

tion of the Ohio legislature to reject a general discovery

rule that would encompass the plaintiffs’ suit and to Con-

tinue 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 ap-

plication 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 Gen-

eral Assembly has refused to adopt the discovery

rule for medical malpractice cases, it has neverthe-

less created certain exceptions to the general opera-

tion of various other statutes of limitation.

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 present-

ed 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

a. 32

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 Unit-

ed States Court of Appeals for the Third Circuit.'

Thus, I would grant the petition for rehearing and

affirm the decision of the lower court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

1. 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 tule announced

by the majority.

a. 33

IN THE COURT OF APPEALS OF OHIO

CUYAHOGA COUNTY EIGHTH DISTRICT

NO. 38328

CATHERINE SAULTZ, ET AL.

Plaintiff-Appellants OPINION

Vs. Dated: HAY 2 4 1979

PAUL O. FUNK, M.D.

Defendant-Appellee

APPEARANCES :

For Plaintiff-Appellants: Ellis B. Brannon

William J. Novak

802 Keith Building

Cleveland, Ohio 44115

For Defendant-Appellee: William J. Coyne

Rhoa, Follen & Coyne Co., LPA.

1630 Williamson Building

ClIéveland, Ohio 44114

pook | €) £) pace 329

a. 34

SYLLABUS

Under R.C. 23905.11(A) a cause of action for medical

malpractice accrues upon termination of the physician-patient

relationship, and a claim must be filed within one year of

termination. In cases involving a foreign object left in a

patient's body during surgery the running of the one year

limitation period is tolled following termination until the

patient determines, or reasonably should have determined, tnat

the foreign object has been left in his body. However, the

termination and tolling rules applied under R.C. 2305.11(A)

are subject to the limitation set forth in R.C. 2305.11(B),

that in no event shall any medical claim against a physician

be brought more than four years after the act or omission

constituting the alleged malpractice occurred.

KRENZLER, P.J.:

This case involves the question of the timeliness of

the filing of an action for medical malpractice.

On July 27, 1976,the plaintiff-appellants Catherine

end Ralph P. Saultz, husband and wife, filed a complaint in

the Cuyahoga County Common Pleas Court against the defendant-

appellee Paul O. Funk, M.D., hereinafter referred to as ap-

pellce,.arising out of a tubal ligation alleged to have been

negligently performed by the appellee upon Mrs. Saultz. In

their complaint the appellants stated that Mrs. Saultz entered

the hospital on November 14, 1973, and that thereafter the op-

eration wes performed. It was further alleged that as a prox-

imate result of the appellee's negligence the appellants

learned in approximately September, 19747 that Mrs. Saultz

was pregnant; that the appellants had five other children,

fand that the purpose of the operation was to prevent further

childbirth; that on May 14, 1976 Mrs. Saultz gave birth to

a son; that due to appellee's negligence Mrs. Saultz developed

an infeccion and diabetes; and that various expenses had been,

and would continue to be, incurred resulting from appellee's

i/ This date should properly have read September, 1975. The proper

‘~~. date was supplied by the appellants’ response to interrogatories.

Alsu, the appellant stated in an affidavit that the child was con-

ceived on or about August 15, 1975. This date was not contested

by the appellee and was relied upon in the lower court's opinion.

ROOK 1 J U Pace ad

negligence. These expenses included medical expenses due to

the birth, infection, and diabetes, and expenses for support

and maintenance of the child. The appellants demanded judg-

ment in the sum of $150,000.00 plus interest and costs.

In his answer to the complaint, the appellee entere<

a general denial to the allegations of negligence, asserted

that the complaint failed to state a claim, and also raised

the affirmative defense that the complaint was not timely

filed and therefore was barred by the statute of limitations.

No motion to dismiss was filed by appellee pursuant to Civ.

R. 12(B)(6) based upon failure to state a claim upon which

relief could be granted.

Interrogatories were filed by both sides, and the

appellant-Mrs. Saultz filed her answers to the interrogator:

ies on December 3, 1976. The record does not indicate that

the appellee filed answers to the appellants’ interrogatorie:

On February 16, 1977,the appellee filed a motion fo.

summary judgment, Civ. R. 56, alleging that the case should

be dismissed since it had not been timely filed in accordance:

with R.C. 2305.11. Accompanying the appellee's motion for

summary judgment was an affidavit in which he stated: that

he had treated Catherine Saultz for a tubal ligation and that

she was discharged from the hospital on November 19, 1973;

that at that time arrangements were made for Mrs. Saultz to

come to the appellee's office for post-operative treatments

BOOK || F) ) PAGE 9.49

a. 37

on December 3 and 10, 1973; that these appointments were not

kept; and that the appellee's last contact with Mrs. Saultz

was on November 19, 1973, the day she was discharged from the

hospital.

The appellants filed a reply brief to the appellee's

motion for summary judgment, accompanied by an affidavit by

Mrs. Saultz asserting that: in November 1973 the appellee

purported to perform the tubal ligation; that the purpose

thereof was to prevent further conception of children; that

on or about August 15, 1975 Mrs. Saultz conceived a child;

and that the child was born on May 14, 1976.

In a judgment entry and opinion filed July 22, 19/77

the trial court granted the appellee's motion for summary

judgment and ordered the case dismissed on the ground that

the action was not timely filed.

The appellants filed a timely appeal from the judg-

ment entered below and have presented the following assign-

ments of error for our consideration:

I. UNDER THE PRINCIPLES OF MELNYK v. CLEVELAND

CLINIC, A PHYSICIAN WHOSE CONDUCT CONSTITUT-

ED NEGLIGENCE AS A MATTER OF LAW CAWNOT RAISE

THE STATUTE OF LIMITATIONS DEFENSE AGAINST A

PATIENT WHO SUED THE PHYSICIAN WITHIN ONE

YEAR OF DISCOVERING THE PHYSICIAN'S WEGLIGENCE.

Il. IN EN.: STING SECTION 2305.11(B) OF THE OHIO

REVISED CODE, THi LEGISLATURE ADOPT&D A LIMIT-

ED DISCOVERY RULE FOR DETERMINING WHEW A MED-

ICAL MALPRACTICE ACTION ACCRUES.

nook 7 «)() pace 3.43

a. 38

III. THE UNITED STATES AND OHIO CONSTITUTIONS

REQUIRE THE USE OF A DISCOVERY RULE TO

DETERMINE THE ACCRUAL OF A CAUSE OF ACTION

FOR MEDICAL NEGLIGENCE.

A. FUNDAMENTAL FAIRNESS DEMANDS THAT A

PATIENT'S RIGHT TO SUE SHOULD NOT BE

CUT OFF BEFORE HER CAUSE OF ACTION

MATURES.

B. EQUAL PROTECTION FORBIDS LIMITING THE

DISCOVERY RULE TO FOREIGN OBJECT

CLAIMANTS ONLY.

The statute of limitations applicable to medical

malpractice claims is set forth in R.C. 2305.11 which pro

vides in pertinent part as follows:

"(A) An action for...malpractice, including an

action for malpractice against a physician...

shall be brought within one year after the cause

thereof accrued....

"(B) In no event shall any medical claim against

a physician...be brought more than four years

after the act or omission constituting the al-

leged malpractice occurred."

The rule set forth in subsection (A) that a malprac-

tice action must be brought within one year after it accrues

is one of long standing which has been in effect since 1894.

See 91 Ohio Laws 299. Much litigation involving this rule

has centered around the question of when such an action ac-

B00K TUG Pace 244

aq 20

cures and when the one year period commences to run. Sub-

section (B) is a ieeiete amendment to the statute which became

effective in 1975. See Am. Sub. House Bill 682, 1975 Laws of

Ohio 4-160 (Ealdwin). Appellants' first assignment of error

raises the issue of when the one year limitation period con-

tained in subsection (A) began to run on their malpractice

claim. Their second assignment of error requires us to de-

termine the correct meaning of subsection (B) and its proper

Mialationship with, and effect upon, the rule set forth in

subsection (A).

In order to place appellants’ assignments of error

in proper perspective, we shall first summarize the present

Ohio law governing the time within which an action for mal-

practice must be filed.

For purposes of interpreting subsection (A), there

are three principal points in time when a cause of action for

malpractice might be said to accrue: (1) on the date when

the relationship between the plaintiff-patient and the defen-

dant-physician terminates (the "termination rule), see e.g.

Wyler v. Tripi (1971), 25 Ohio St. 2d 164; (2) on the date

when the act or omission constituting the alleged malpractice

is discovered or in the exercise of reasonable diligence

should be discovered, (the "discovery" rule), see, e.g.

Whitfield v. Roth (1974), 10 Cal. 3d 874, 112 Cal. Rptr. 540,

519 P.2d 588; Ala. Code, §6-5-482; (3) on the date when the

00K F §) () pace B45

a 40

act or omission actually occurred. The latter rule, while

perhaps the most definite and easiest to administer, is also

the most strict. Most courts have developed exceptions to

that rule in order to avoid the harsh results often arising

in malpractice cases. See Wyler v. Tripi, supra at 166.

The termination and discovery rules each have

strengths and weaknesses in terms of serving public policy

interests in forestalling stale claims, protecting mutual trust

in the nhysician-patient relationship, preventing a patient from

being deprived of a bona fide but as yet undiscovered clain,

Taken alone, neither rule serves to prevent stale

claims which may be difficult to defend against long after

the occurrence of the act or ommission at issue. A patient may

either continue his relationship with the docter for a number

of years, during which time the termination rule would post-

pone commencement of the statutory limitation period, or he

may fail to discover his injury for a similarly long period

during which tne discovery rule would have the same effect.

The termination rule is justified by the rationale

that it strengthens the physician-patient relationship. See

Wyler v. Tripi, supra. "The patient may rely on the docter's

ability until the relationship is terminated and the physiciéz

has the opportunity to give full treatment, including the

immediate correction of any errors in judgment on his part."

BOOK | () () pace 316

a. 41

Id. at 168. In short, the termination rule is designed to

avoid forcing a patient to sue his doctor. This rule suffers

from the weakness that a patient may be forced to forfeit a

valid claim where the physician-patient relationship termi-

nates, and the statutory period expires, before the injury is

or reasonably should be discovered. "The termination rule is

further fallible in that it requires the patient to determine

at the time the relationship is terminated, that malpractice

has taken place, when in fact he may have relied upon the

very ‘advice that constitutes malpractice." Wyler v. Tripi,

supra at 168.

Generally the discovery rule favors the patient by

extending commencement of the statutory period until he dis-

covers or should discover the malpractice, thus reducing the

possibility that a valid claim will be lost. Where the in-

jury is discovered during a continuing course of treatment,

however, to require the patient to sue may be seen as destroy-

ing the mutual confidence in the physician-patient relation-

ship. Ishler v. Miller (1978), 56 Ohio St. 2d 447, 449 (per

curiam). "Such a requirement would place the patient in the

unacceptable situation of deciding whether to continue the

ongoing treatment and thus risk the chance of forfeiting his

right to bring suit at a later date, or terminate the rela-

tionship, and perhaps, deny the physician the opportunity of

correcting his error." Id.

AOOK 4 y 4) PAGS dd7

a. 42

The Ohio Supreme Court has traditonally followed

the termination rule in malpractice cases. See e.g. Ishler

v. Miller, supra; Wyler v. Tripi, supra; DeLong v. Campbell

(1952), 157 Ohio St. 22; Bowers v. Santee (1919), 99 Ohio St.

361. In Wyler v. Tripi, supra, the court thoroughly examined

the advantages and disadvantages of the termination and dis-

covery rules, and although it acknowledged that "there is

much to recommend the adoption of the discovery rule," reluc-

tantly concluded the courts should leave adoption of such a

rule to the legislature. Id. at 170-71. This it was noted

the legislature had failed to do despite numerous opportuni-

ties. Id. at 171.

In a 1972 case where the defendant-surgeon failed to

remove a metallic forceps and a nonabsorbent sponge from the

plaintiff-patient's body following surgery, the Ohio Supreme

Court devised a "foreign object tolling rule." See Melnyk

v. Cleveland Clinic (1972), 32 Ohio St. 2d 198. The court

expressly declined to disturb its holding in Wyler v. Tripi,

supra, which it noted was not a "foreign object" case, that

a cause of action for medical malpractice accrues at the time

that the physician-patient relationship terminates. Rather

it held that:

"Where a metallic forceps and a nonabsorbent

sponge are negligently left inside a patient's

body during surgery, the running of the statute

of limitation governing a claim therefor is tolled

until the patient discovers, or by the exercise

BOOK 1 Q) +) PAG? 248

a. 43

of reasonable diligence should have discovered

the negligent act. (Wyler v. Tripi, 25 Ohio St.

2d 164, distinguished.)" Melnyk v. Cleveland

Clinic, supra (syllabus). :

Thus, in Melnyk the Supreme Court devised a special

“tolling” rule under what is now R.C. 2305.11(A) whereby the

plaintiff's cause of action accrued upon termination, but the

one year statutory period did not begin to run until the

patient determined, or by reasonable diligence should have

determined, that the foreign objects were left in his body

during surgery.

In support of its decision the court noted.that it

was difficult to imagine a defense to the act charged, and

that "as problems of proof and defense dwindle, so does the

persuasiveness of the ‘stale claims’ reasoning.” Id. at 200.-

In their first assignment of error appellants con-

tend that the tolling rule devised by the Supreme Court in

Melnyk extends to all cases involving acts that can be label-

led "negligence as a matter of law," and therefore that their

action was timely filed under R.C. 2305.11(A). Appellee con-

tends on the other hand that the Melnyk rule applies only to

cases where foreign objects are left in a patient's body dur-

ing surgery, and therefore that the one year statute of limi-

tations in the instant case commenced to run upon termination

of the physician-patient relationship.

The record shows: that the operation in question

took place sometime between November 14 and 19, 1973; that

ROOK § Q ©) pace 849

a. 44

-10-

the physician-patient relationship terminated at the latest

on December 10, 1973; that Mrs. Saultz determined that she was

pregnant in September, 1975; and that this action was filed

on July 27, 1976. Thus the complaint was filed within one

year of determination of appellee's alleged negligence, but

not within one year of termination of the physician-patient

relationship.

The tolling rule devised in Melnyk v. Cleveland

Clinic, supra, was applied only to the facts present in that

case. It does not extend to all cases involving negligence

as a matter of law. As we interpret Melnyk, the running of

the statute of limitations is tolled only in those cases

where a foreign object or objects are left in a patient's

body following surgery. Other courts which have addressed

the question reached a similar conclusion, and refused to

apply Melnyk to cases where no foreign object was left ina

patient's body following surgery. See Simmons v. Riverside

Methodist Hospital (1975), 44 Ohio App. 2d 146; Woodgeard v.

Miami Valley Hospital Society (Montgomery Cty. C.P. 1975),

47 Ohio Misc. 43.

Based on the allegations contained-in the complaint

in the instant case, this action involves negligent perform-

ance of a tubal ligation and is not a "foreign object" case.

Thus the Melnyk rule does not apply. For purposes of R.C.

2305.11(A), appellants’ cause of action for malpractice ac-

Rook | §) Q) paca 300

a. 45

crued, and the one year statutory period began to run, on the

date that the physician-patient relationship terminated. Ac-

cordingly, appellants’ first assignment of error is overruled.

Following the Supreme Court's decision in Melnyk v.

Cleveland Clinic, supra, the General Assembly amended the

statute of limitations governing malpractice claims by enact-

ing R.C. 2305.11(B), effective July 28, 1975, which provides

in pertinent part:

"In no event shall any medical claim against

a physician...be brought more than four years

after the act or omission constituting the al-

leged malpractice occurred." (Emphasis added)

In their second assignment of error, appellants con-

tend that by enacting subsection (B) the legislature impliedly

acopted a limited discovery rule which applies to all medical

malpractice actions and operates within the four year period

set forth in subsection (B). Thus they contend that an action

is timely if filed within one year of discovery, and also no

more than four years after the act of malpractice.

Appellee contends on the other hand that subsection

(B) does not repeal the existing termination rule in favor

of a discovery rule; that it merely operates to cut off stale

claims by establishing an outside limit of four years from

the act of malpractice within which to file a claim; and that

subsection (B) would be pertinent in the instant case only if

the physician-patient relationship terminated more than three

pook | {)() pace 251

a. 46

years after the act of malpractice, and that in such a case

subsection (B) would serve to shorten, not extend, the period

for filing a clain.

Thus, as a matter of statutory construction we must

determine the correct meaning of subsection (B), as well as

its proper interrelationship with subsection (A).

Upon examination of R.C. 2305.11(B) we find that its

terms are clear and unambiguous. The statute provides that

in no event shall any medical claim be brought more than four

years after the act or omission constituting the alleged mal-

practice occurred. The statute does not mention a limited

discovery rule, nor does it indicate a legislative intent to

adopt such a rule. Moreover, subsection (B) does not indicate

that the legislature intended to overrule altogether the term-

ination and tolling rules previously adopted by the Supreme

Court. Rather the legislature limited the period during

which the termination and tolling rules may extend the period

for bringing a claim under subsection (A).

Prior to passage of subsection (B), the Supreme

Court determined that a cause of action for medical malprac-

tice accrued, and the one year statute of limitations began

to run, only upon termination of the physician-patient re-

lationship. Wyler v. Tripi, supra. In cases involving for-

eign objects, the cause of action still accrued at termina-

tion, but in such cases the stacute of limitations was tolled

aooK J) () paca 302

a. 47

-13-

following termination until the plaintiff determined that a

foreign object had been left in his body during surgery.

Melnyk v. Cleveland Clinic, supra. Under these decisions, a

patient who either continued his treatment relationship with

his doctor, or failed to determine that a foreign object wes

present, could bring an action many years after the occurrence

of the act or omission of negligence upon which his claim was

based. Thus former R.C. 2305.11, as interpreted, did not

always prevent the prosecution of stale claims. By enacting

subsection (B), the legislature limited the termination and

tolling rules to the extent that they previously would have

allowed a claim to be filed more than four years after the

act or omission alleged to constitute malpractice. The legis-

lature did not otherwise overrule the termination and tolling

rules, except to the extent that they conflict with the four

year limitation in subsection (B).

Thus in order to satisfy subsection (A) one must

still file a claim within one year of termination, unless

Melnyk applies, in which case the one year statutory period is

tolled following termination until the patient determines, or

reasonably should determine, that a foreign object has been

left in his body during surgery. Subsection (B) adds the re-

quirement that “in no event shall any medical claim...be

brought more than four years after the act or comission consti-

tuting the alleged malpractice occurred." R.C. 2305.11(B)

(Emphasis added). EA)OK iH 3 () PAGS god

a. 48

-14-

This means that if in a "foreign object" case the

physician-patient relationship is terminated as early as the

date of the act or omission, the running of the one year stat~

ute of limitations under R.C. 2305.11(A) is tolled util the pat-

fent determines, or reasonably should determine, that a foreign object

was left in his body, but in no event, under R.C. 2305.11(B), may the

action be brought more than four years after the act or omission.

In cases not involving foreign objects there are at

least three other situations in which it is necessary to de-

termine the proper interrelationship of subsections (A) and

(B). These situations and the proper results may be illus-

trated as follows:

1. The physician-patient relationship terminates

and a year passes subsequent to termination,

while the four year period set forth in subsection

(B) has still not yet expired. Here subsection

(A) controls and the action must be brought

within a year of termination regardless of when

the four year period expires.

2. Tne physician-patient relationship continues

for more than four years after the act or omission

alleged to constitute malpractice occurred. Here,

subsection (B) controls and the action must be

brought within four years of the date of the act

or omission regardless of when the relationship

terminates.

3. The physician-patient relationship terminates

within four years of the act or omission, but the

one year period after termination extends beyond

the four ered period after the act or omission.

. Again, subsection (B) controls and the action

must be brought within four years of the date on

which the act or omission occurred, rather than

within the one year period following termination.

ROOK 1 () Q paca 357

a. 49

-15-

Upon first examination, application of the four year

limit in the latter two examples may appear to be inconsis-

tent with the underlying rationale of the termination rule

wnich.is to avoid forcing a patient to sue his treating phy-

sician. In reality, however, this is not the case. In ef-

fect, the four year limitation forces termination within a

four year period since in all but the highly unusual case

the patient will cease consulting the physician before or at

the time when he must bring suit. Thus by the time the action

commences the patient will have terminated his relationship

with the doctor.

We have previously determined that the instant case

is. not governed by the Melnyk rule, and tne record demonstrates

that the physician-patient relationship terminated and one

year passed prior to expiration of the four year limit set

forth in subsection (B). Therefore this case falls within

the first example given above, and appellant was required to

file her action within one year after termination. The

record shows that the physician-patient relationship termi-

nated at the latest on December 10, 1973, and thus appellant

was required to file her claim within a year from that date.

Since her claim was not filed until July 27, 1976, it was

barred by R.C. 2305.11(A).

We realize that the statute as presently written

Operates in a harsh manner and may often serve to cut off a

evox | &) Q) Pagan doa

a. 50

-1LO-

valid claim before a patient has discovered or reasonably

could discover that a cause of action exists. We are unable

to see, however, how subsection (B) may be interpreted as

adopting a discovery rule and thereby as adding an extra di-

Meiis on to the time when this action accrued for purposes of

subsection (A). To the contrary, subsection (B) limits the

existing termination and Melnyk rules by shortening the pre-

vious statutory period in those cases where the physician-

patient relationship terminates, or the patient determines

the presence of a foreign object, more than three years after

the act of malpractice.

Accordingly, appellants’ second assignment of error

is overruled.

In their third assignment of error, appellants con-

tend that application of the statute of limitations to bar

their claim violates due process of law and denies them equal

protection of the laws contrary to the Fourteenth Amendment

of the United States Constitution, and also contrary to Arti-

cle I, Section 16 of the. Qhio Constitution which is equivalent

to the due process clause. See Barnhardt v. Linzell (1957),

104 Ohio App. 243.

Appellants first argue that due process requires a

discovery rule. This is incorrect. Due process does not

require that a statute of limitations governing malpractice

claims be extended until the injury is discovered or should

00k J () C0 pace § 35S

a. 51

-17-

be discovered. Clark v. Gulesian (lst Cir. 1970), 429 F.2d

405, cert. denied, (1971), 400 U.S. 993; Gwen v. Wilson

(1976), 260 Ark. 21, 537 S.W. 2d 543; Laughlin v. Forgrave

(Mo. 1968), 432 S.W. 2d 398 (En Banc).

Appellants also argue that application of the term-

ination rule in the instant case violates equal protection,

since in foreign object cases the Melnyk "tolling" rule is applied.

This is also incorrect. Ohio has one general rule which is

applied in malpractice cases, and that is the termination

rule. The running of the statute is tolled only where «

foreign object is left in a patient's body during surgery.

See Melnyk v. Cleveland Clinic, supra. The application of a

different statute of limitations or a different date on which

the statute commences to run in a particular class of actions

does not violate equal protection so long as the classifica-

tions are reasonable, not discriminatory, and apply to and

affect alike all persons and actions within the class.

Laughlin v. Forgrave, supra. The distinction between foreign

object cases and other medical malpractice claims is neither

unreasonable nor arbitrary, and appellants are treated

equally with all other plaintiffs bringing malp-_actice claims

in cases not involving foreign objects. Accordingly they

are not denied equal protection of the laws. Appellants’

third assignment of error is therefore without merit ‘and is

overruled.

suo 1 YQ rast 257

a. 52

In summary, appellants’ cause of action for malprac-

tice accrucd at the latest on December 10, 1973 when Mrs.

Saultz failed to keep her final appointment with appellee and

the physician-patient relationship terminated. See Wyler v.

Tripi, supra. Appellants were required to bring this action

within one year of that date. R.C. 2311.05(A). Since they

did not file the instant action until July 27, 1976, more

than two and one-half years later, the action was not timely.

Hence the trial court properly granted the appellee's motion

for summary judgment.

Judgment affirmed.

JACKSON, J.,

CORRIGAN, J., CONCUR

nook | i G POS RQ

a. 53

IN The COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

Alfred T. Spangler,

and

fartha Spangler, :

Plaintiffs-Appellants, :

Vv. HY No. 77AP-586

Southern Hills, Inc., :

and

Zellermayer Supply Corp., :

Defendants-Apnel lees.

DEctIS10N

Rendered on February 2, 1978

MR. STANLEY S. SMITH,

3315 North Broadway

Grove City, Ohio 43123,

For Plaintiffs-Appellants.

LANE, ALTON & HORST,

MR. JOHN M. ALTON, and

MR. ROBERT E. FROST, of Counsel,

150 East Broad Street,

Columbus, Ohio,

and

GINGHER & CHRISTENSEN,

MR. BRADLEY HUMMEL, of Counsel,

311 East Broad Street,

Columbus, Ohio,

and

WR. JAMES L. MALONE,

731 Leader Building,

Cleveland, Ohio 44114,

For Defendant-Appellee Southern. Mills, Inc.

a. 54 |

Re. 77 AP -586 2

KMNEPPER, WHITE, RICHARDS & MILLER,

MR. JANES A. READEY, of Counsel,

180 East Broad Street,

Columbus, Ohio, |

For Defendant-Appellee Zellermayer

Supply Corp.

STRAUSBAUGH, J.

This is an appeal by plaintiffs from a judgment of the

Comnon Pleas Court in favor of defendants dismissing plaintiffs’

complaint with prejudice.

The plaintiff's action filed herein on February 18, 1977,

stating causes of action in negligence and breach of warranty against

the defendants alleged:

“ * * * that prior to September, 1974, he was

employed by Raybestos-Manhattan, Inc. of

Bridgeport, Connecticut to sell and service

asbestos pads * * * that his work consisted of

removing and installing asbestos pads or covers

on flat-work irons using products supplied by

both Defendants and that part of this work was

done by hand and by using an air compressor to

blow excess asbestos off the irons; that in

this work process substantial quantities of

asbestos fumes and dust particles were inhaled

by plaintiff.

"5. Plaintiff's employment with Raybestos-

Manhattan was terminated on September 6, 1974

kkk

"6. Plaintiff thereafter began having great

difficulty breathing and in March, 1975, and

thereafter was diagnosed as having ‘Pneumonoconiosis'

or '‘abestosis' and obstructive lung disease as a

direct and proximate result of inhaling asbestos

fumes and dust over the period of his employment.

a. 55

No. 77AP-586 3

Thereafter, both defendants filed motions to dismiss because

the action was not brought within the applicable statute of limitations.

On June 13, 1977, the Common Pleas Court upon consideration of the

pleadings, exhibits, and memorandum of counsel, sustained defendants '

motions finding that the applicable statute of limitations has run and

that the complaint fails to state a cause of action.

Plaintiffs’ single assignment of error is:

‘The decision of the Court of Common Pleas of

Franklin County, Ohio, dated June 13, 1977,

sustaining Motions to Dismiss and applying

Ohio ‘Revised Code Section 2305.10 unconstitu-

tionally denies Plaintiff's 5th Amendment and

14th Amendment, United States Constitution

rights of due process and equal protection of

the laws."

The argument made by plaintiffs is compelling and not without

2 great deal of merit as were those arguments before this court in

wherein we held, in an action for medica) malpractice against a

physician wherein allegations were made that incorrect blood tests

were conducted, that the one year statute of limitations regulating such

an action is not tolled until the negligence is discovered, as where

2 foreign object is found inside a former patient, but that the cause

of action accrues when the physician-patient relationship finally

terminates. In that case we reviewed the law as set forth by the

Suprema Court in Wyler v. fript (1971), 25 Ohio St. 2d 164, wherein

the Supreme Court held that under R. C. 2305.11, a cause of action for

medical malpractice accrues, at the latest, when the physictan-patient

relationship finally terminates.

a. 56

to. 77AP-586 4

In Melnyk v. Cleveland Clinie (1972), 32 Ohio St. 2d 198,

the Supreme Court distinguished Wyler by adding a new element of tolling,

holding that:

"Where metallic forceps and a nonabsorbant sponge

are negligently left inside a patient's body dur-

ing surgery, the running of the statute of limitation

governing a claim therefor is tolled until the

patient discovers, or by the exercise of reasonable

diligence should have discovered, the negligent act.

* ke kN

In this case we find plaintiffs’ assignment of error to be

not well taken. We therefore limit, as has the Supreme Court, the

rule as set down in Wyler to the surgical malpractice suits as set

forth in Melnyk. It may well be true as plaintiffs have so ably argued

herein that the results in the presert case may be more grievous than

those in Wyler. However, such determinations are within the policy

making area which should be considered and deliberated in a legislative

body not by the courts. However, if judicial legislation be indulged

in such change should be made by the Supreme Court of this state and

not by this court. Plaintiffs’ single assignment of error is overruled,

and the judgment is affirmed.

Judgment affirmed.

REILLY and McCORMAC, JJ., concur..

a. 57

TIDE SLuREME COURT OF THE $sALE OF ONTO

THE SUYATE OF OHIO, I te TERM

City of Columbus. T0 UIE Sorneeceeren ON tbe, TUTE

Alfred T. Spangler etal.,

Appellants, 78-399

PE i sicditanitititiatsiieishinn

{OTION FOR AN ORDER DIRECTING

vs. THES COURT OF APPEALS

Southern Mills, Inc., et al.,

Appellees. for FRANKLIN County

TO CERTIFY ITS RECORD

It is ordered by the Court that this motion is overruled:

COSTS:

Stanley S. Smith

Motion Fee, $20.00, paid by

—- my

I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio, certify that the,

foregoing entry was correctly copied from the Journal of this Court.

Witness my hand and the seal of the Court’

ERE S...20ce ..day of 19

__.Clers

Deputy’

a. 58

f | 18. i

@HE STATE OF OHIO 19, PRR

City of Columbus. j To wit: May ll, 1978

Alfred fT. Spangler etal.,

Appelants,

fin

Us. ALPPEAL FROM TILE COURT OF

Saulrern Mills, Inc., et al., APPEALS

Appellees.

FRANKLIN

County

This cause, here on appeal as of right from the Court of Appeals for...

sand PRANK LIN County, was heard in the manner prescribed by lure, and,

no motion to dismiss such appeal having been filed, the Cowrt sta sponte dismisses

the appeal for the reason that no substantial constitutional question exists hersvin.

It is further ordered that a copy of this entry be certified ta

the Clerk of the Court of Appeals for........... ERANBLOV........__...County for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from the Journal of this Court.

Witness my hand and the seal of the Court

this.......day of 7 {Seer

Clerix

Deputy,

a. 59

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

no... 37404.

Beatrice Kottler, et al. APPEAL FROM

PLAINTIFF- APPELL.ANTS........ common, Pleas... COURT

‘in No.......952,,095

University. Hospitals. of oo.

JOURNAL ENTRY

Cleveland... -

AND

DEFENDANT- APPELL EE. ........... OPINION

Gy MAY 41978 a

PRYATEL, J.

This cause came on to be heard upon the pleadings and the .0..........cceeccececeseeeeeeeemmenteee transcript

of the evidence and the record in the .......COMMON PLAS. eccccessese cieeeememeersesemere Court,

und was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial

to the appellant and therefore the judgment of the ... common Pleas. Court

is affirmed. Fach assignment of error was reviewed and upon review the following disposition made:

This is an appeal by the plaintiff, Beatrice Kottler (the

appellant herein) from a partial summary judgment entered on Decem-

ber 6, 1976 in favor of the defendant, University Hospitals of

Cleveland (the appellee herein), holding that the

“complaint [filed February 2, 1976], insofar as it is

based upon allegations against University Hospitals,

its »gents, servants or assigns, for any action or

failure to act on or before February 1, 1974

is barred by the statute of limitations set forth in

Ohio Revised Code §§2305.10 and 2305.11."

a. 60

[he court's judgment was bascd on the following facts as set forth

in its Judgment Entry:

". . .{O)Jn January 22,.1974, Plaintiff was admitted to

University Hospitals on the private service of Dr. Lee

Rubenstein, M.D., for a vaginal hysterectomy; that the

proposed hysterectomy was performed by Dr. Rubenstein

on January 23, 1974; that on January 29, 1974 Dr. Ruben-

stein ordered two units of whole blood for transfusion to

Plaintiff; that the first unit of blood was started on

January 29, 1974 at 8:40 p.m. by the University Hospitals

staff physician; that the transfusion of that unit was

terminated at, 11:45 p.m. on January 29,°1974; that no

further efforts to transfuse blood occurred thereafter;

that at page 23 of the hospital records of University

Hospitals attached to Defendant's motion for summary

judgment, a notation appears which indicates that on

February 2, 1974 results of a hemotology test were re-

corded with respect to:the Plaintiff Beatrice Kottler;

and, that on February 3, 1974, at the order of her personal

physician, Dr. Lee Rubenstein, M.D., the Plaintiff Beatrice

Kottler was discharged from University Hospitals.

"Further, the Defendant University Hospitals has

asked this Court to assume, for the purposes of this motion

only and in the interest of removing even a scintilla of

conflict over relevant material issues, that the Plaintiff,

in fact, subsequent to January 30, 1974 manifested the

symptoms and in fact developed serum hepatitis; that the

serum hepatitis was proximately caused by a negligent

transfusion of blood by Defendant on Januar 25, 1974 at

8:40 p.m., said transfusion terminating at :-45 p.m. on

that same day; and, that the Plaintiff did not ‘discover’

she had hepatitis until February 3, 1974, said date .repre-

senting the earliest possible date of discovery. The Court,

only for the purposes of determining the motion for partial

summary judgment, will accept this concession from Univer-

sity Hospitals.”

At the conclusion of its Judgment Entry the trial court expressly

letermined pursuant to Civ. R. 54(B) that there was no just reason

‘or delay, and thereby finalized the judgment for appeal.

The appellant filed a timely notice of appeal and raises two

issignments of error.

a. 61

Agsinnment of Error #1:

“PLAINTIFF'S CAUSE OF ACTION DID NOT ACCRUE UNTIL

THE ONSET OF HEPATITIS IN MARCH OF 1974 SINCE BEFORE THAT

PLAINTIFF DID NOT INCUR ANY INJURY AND COULD NOT HAVE

BROUGHT SUIT AT THAT TIME."

This assignment of error is not well taken.

Where an action for bodily injury is based on negligence, the

law may designate one of three different dates that triggers the

statute of limitations, (1) when the wrongful act or omission occurred,

(2) when such act or omission resulted in injury, or (3) when the

injury was or, by the exercise of reasonable diligerice, should have

been discovered. Cf. Wyler v. Tripi (1971), 25 Ohio St. 2d 164.

A discussion of statutes of limitation in general is helpful

here to understand the problem under review.

The Supreme Court of Ohio has long held the view that absent

a statutory exception, a statute of limitation begins to run when

the wrongful act or omission complained of occurs. Wyler v. Tripi,

supra, at 166 (dictum). Williams v. Pomeroy Coal Co. (1882), 37

Ohio St. 583 (alternative holding); Fee v. Fee (1841), 10 Ohio 469.

Squire v. Guardian Trust (8th Dist. 1947), 79 Ohio App. 371,° at 383 and

389 (alternative holding). The Court has rejected the view that

the statute begins to run, when the resulting damage occurs or is

discovered. Wyler v. Tripi, supra; DeLong v. Campbell (1952), 157

Ohio St. 22; Kerns v. Schoonmaker (1831), 4 Ohio 331; Squire v.

Guardian Trust, supra at 389.

a. 62

, whe

Williams v. Pomeroy Coal Co., supra, was an action for trespass

committed by the defendant coal company. In 1858, the coal company

leased a parcel of land for mining. While excavating the coal from

that lot, the coal company mined part of the adjoining lot. In

1862, the coal company completed its mining and surrendered the

leased parcel, leaving behind abandoned mines which accumulated water.

The plaintiff purchased the adjoining lot in 1864, also for mining.

In 1868, miners in plaintiff's land struck an abandoned mine (left by

the coal company). which flooded the plaintiff's mine. ‘The court held

that the plaintiff's suit could not be maintained because the plaintiff

was not the owner of the land at the time the trespass was committed,

and if he had been the owner, the action would be barred by the four-

year stetute of limitations relating to trespass. Paragraph 2 of the

Court's syllabus states:

"In the application of the statute of limitations there

is no distinction between trespass under ground and upon

the surface; nor whether the cause of action was known or

unknown to the plaintiff within the time limited by statute."

After Williams v. Pomeroy Coal Co., supra, was decided, the

General Assembly amended R.C. 2305.09 (formerly G.C. 11224) to pro-

vide, in part, as follows: |

"If the action is for trespassing under ground or injury

to nines, or for the wrongful taking of personal property,

the causes thereof shall not accrue until the wrongdoer is

discovered . . ." (emphasis supplicd).

In DeLong v. Campbell, supra, at 28, according to the Supreme

Court, the change in the statute for the action of trespass to accrue

“when the wrongdoer is discovered" "was unquestionably enacted by

the General Assembly as the result of the decision of this court in

a. 63

Williams v. Pomeroy Coal Co. ..." In deciding “whether, as to a

cause of action for malpractice by a physician, the statute of

limitations begins to run at the termination of the physician-patient

relationship or whether the statute begins to run from the time the

patient discovers the malpractice," the court in DeLong reasoned:

"Had the legislative branch of government intended that

the statute [present R.C. 2305.11) should not begin to

run until discovery by the patient of the malpractice, it

could have added a provision to that effect, just as it did

in Section 11224, General Code [present R.C. 2305.09).”

Again, upon a ‘recent review of the same question raised in DeLong,

the Supreme Court, in Wyler v. Tripi, supra, reaffirmed its earlier

decision and followed the same reasoning, stating:

“Although an examination of the cases reveals that there

is much to recommend the adoption of the discovery rule,

we reluctantly conclude that courts of Ohio should not

decree such an adoption. We are convinced that to do so

would place us in the obvious and untenable position of

having not only legislated, but of having done so, directly

in the face of a clear and opposite legislative intent."

(footnote omitted).

The statute under review in the present case, R.C. 2305.10, pro-

vides that “an action for bodily injury . . . shall be brought within

two years after the cause thereof arose." Like R.C. 2305.11,

revicwed in Wyler v. Tripi, supra, this statute (2305.10) has not been

amended to suspend the running of the period of limitation until the

injury occurred. We hold that the same reasoning applies to present R.|

Section 2305.10. -Had the legislature intended that this statute begin

to run when the injury resulted rather than when the wrongful act

occurred, it could have amended th law to that effect. We are, there-

fore, bound by the reasoning of the Supreme Court in Wyler v. Tripi

not to imply that which the legislature intended to omit.

a. 64

ad.

According to the appellee's brief, the statute of Limitations

(R.C. 2305.10), and not the one-year malpractice statute of limita-

tions (R.C. 2305.11) is at issue here. In oral arguments in response

to the court, the appellants’ counsel was unwilling to go that far.

Because the trial court did state in its Judgment Entry that both

Statutes barred the appellant's suit, and the appellant apparently

has submitted both for consideration on appeal, we have also reviewed

the question of whether the appellant's suit was filed within the

one~ycar period of R.C. 2305.11. We hold that it was not.

The one-year statute (2305.11) began to run at the latest on

February 3, 1974, the date that the appellant terminated her con-

tractual relationship with the hospital. Wyler v. Tripi, supra.

Any malpractice claim that the appellant may have had due to the

appellce’s negligence prior to February 3, 1974 was barred by the

time she filed her complaint on February 2, 1976, (wore than one ycar later).

The appellant's first assignment of error is overruled.

Assipnment of Error #2:

“EVEN IF PLAINTIFF HAD A CAUSE OF ACTION ON JANUARY

29, 1974, AS DEFENDANTS CONTEND, THIS CASE IS WITHIN THE

FOREIGN OBJECT EXCEPTION OF MELNYK VS. CLEVELAND CLINIC."

This assignment of error is not well taken.

The Court in Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 24

198 (Wyler v. Tripi, supra, distinguished), adopted a “discovery

rule" in construing the medical malpractice statute of limitations

(R.C. 2305.11) for cases where surgical instruments are left in

paticnts. The statute of limitations in a case where such a “forcign

a. 65

object" is left in the patient begins to run when.the object is dis-

covered or should have been discovered. The appellant seeks to

extend this exception to this case, where the contamination in the

transfused blood is the alleged "foreign object.”

We hold, however, that the reasoning behind the "foreign object’

- exception is not applicable under the facts of the present casc.

The reasoning stated in Melnyk v. Cleveland Clinic, supra, is as

follows:

"Under the record presented here, we are not. now

faced with facts akin to those in Wyler. In the instant

case, it is difficult, if not impossible, to imagine a

defense to the act charged. To carelessly leave large

and obvious metallic forceps and a nonabsorbent sponge in

a surgical patient's body is ee as a matter of law,

and the proof thercof is generally unsusceptible to specu-

lation or error. The relationship between the utterly

helpless surgical patient and his surgeon, during surgery,

is such that the latter must be held to have assumed the

responsibility for the removal of such articles, except-

ing only those which are intentionally left there for

sound medical reasons. Furthermore, as problems of proof

and defense dwindle, so doesthe persuasiveness of the

"stale claims’ reasoning." 32 Ohio St. 2d 198, at 200.

(footnotes omitted)

by contrast, the transfusion of contaminated blood involves

problems of proof and defense which do not occur where surgical

instruments are left in a patient.

The second assignment of error is overruled.

a. 66

REGCcivew sun romtaSans,

MAY 4- 1978

A= 1978

It is ordered that appellce(3) recover of appellant(s) ..... 208.00... 00... costs herein toned

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the .....................0-

oh ee Common. .PLCAS........eccceseeseeeseneeees Court to carry this Judgment into execution.

A certified copy of this entry sh:'! constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure. Exceptions.

PARRINO,, Pas...

SACKSON,, J

oienrediideipinantioted 2 ,

IE Pg, Aesth Nas cesninaas, nincesesinheiactiase’ ” ‘watinanate CL. yost- Lal 2h a ZX aii

ee ee ee

r / august fateh

Yor plainti£f£-appellants : Robert Senor, Esq. -/

For defendant-appellee: Hugh M. Stanley, Jr., Esq.

KN. Th yo bay is tuade pursuant to the third sentence of Rule 22(D), Ohio Rules of Appetinte V’rocedure. This fe an

terineeens® Ph Of Anntitan feum Wele O79 Tom CT0 dave Prom the Pate heran? hte Miasirene® eeltl ha etanendll @0 bn Mente

a. 67

NO. 78-8424 FILED

UNITED STATES COURT OF APPEALS e

FOR THE SIXTH CIRCUIT FEB9 4979

JOHN P. y ie

MARY LOU CLUTTER, EXECUTRIX OF HEHMAN, C!

THE ESTATE OF RUSSELL L. CLUTTER,

Plaintiff-appellant

ORDER

VS.

JOHNS-MANVILLE SALES CORP., ET AL.,

Defendants~appellees.

BEFORE: CELEBREZZE and LIVELY, Circuit Judges, and PECK, Senior

Circuit Judge.

Plaintiff-appellant has petitioned for permission to appeal,

pursuant to 28 U.S.C. { 1292(b), from an order of the district court

granting partial summary’ judgment. Contrary to the requirements of

§1292(b), it does not appear that there is substantial ground ‘for

difference of opinion on the question of law at issue, : The eosin

Court of Ohio has spoken clearly on the matter. See wyler Vv. Tripi,

25 Ohio St. 2d 164 (1971). See also Melnyk v. Cleveland Clinic, ;

-32 Ohio St. 2a 198 (1972). iz

; Therefore, it is hereby ORDERED that the petition for

permission to appeal be denied.

ENTERED BY ORDER OF THE COURT

Aw yp re

Clérk

a. 68

1G RAW YG

SISM “$A ¥YI7}

URY Hah

O(N 40 1éi21

1¥N03 13)

00 WW OZ 190 guéi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARY LOU CLUTTER, Executrix C78-229

of the Estate of RUSSELLL. CLUTTER

Plaintiff

JOHNS-MANVILLE SALES CORP., et al.

Defendant

MEMORANDUM AND ORDER.

THOMAS, J.

Maxy Lou Cinteen,. executrix of the estate of and the

wife of Russell L. Clutter, brings both a , survival action

for ‘injuries to Mr. Clutter and a wrongful death action.

Both ‘claims are alleged to have resulted from the asbesteos-

ichekes disease of mesothelioma. The original suit for ° |

personal injuries was filed on March 6, 1978 by Russell Clutter.

On August 17, 1978 Mr. Clutter died. Subsequently, on

September 29, 1978 the court ‘granted an amendment to the

complaint substituting Mary Lou Clutter as executrix for

Russell Clutter and adding a wrongful death claim.

a. 69

Russell L. Clutter was employed by Rockwell International

in its Ashtabula, Ohio Highway Brake Shoe Division from

March 8, 1962 through April 25, 1964. He was allegedly

exposed to various products of the defendants that contained

asbestos during that period.

Plaintiff has stated that:

Subsequent to April 25, 1964, Russell L. Clutter

was self-employed and never again exposed to the asbestos

fiber.

; From 1964 until February, 1977, plaintiff, Russell

L. Clutter, lived his life without any symptoms or

knowledge that he was afflicted with an asbestos-

related disease. Commencing February 17, 1977,

plaintiff was admitted to Geneva Memorial Hospital...As

the medical records and reports so vividly establish...it

was not until August, 1977 that Dr. Terrence P. Horrigan

of University Hospitals, Cleveland, Ohio was able to

establish a firm diagnosis of malignant pleural

mesothelioma and to establish that the cause of the

pleural mesothelioma was his exposure to asbestos’ during

the years 1962 to 1964.

Defendant Bendix Corp. has moved to dismiss the survival

action under Ped.R.Civ.P. 12(b) (6) and, alternatively, for

summary judgment under Fed.R.Civ.P. 56. ‘The basis of

Bendix's motion is that Ohio's two-year statute of limitations

for personal injury, O.R.C. §2305.10, has expired.

Mr. Clutter was last exposed to asbestos on April 25, 1964

and this suit was filed on March 6, 1978.

1. O.R.C. §2305.10, "Bodily injury or injury to

personal property,” provides:

An action for bodily injury or injuring personal

property shall be brought within two years after.

the cause thereof arose.

- Y Trt. ub——-8-2.7 0-13 08-8900

a. 70

Defendant points to Kerns v. Schoonmaker, 4 Ohio. 331

(1831), for the longstanding proposition: .

{The s]tatute of limitations commences to run as soon

as the injurious act complained of is perpetrated,

although the actual injury is subsequent, and could

not immediately operate.

Reliance is placed upon Williams v. Pomeroy Coal Co., 37 Ohio

St. 583, 589 (1882), for the corallary proposition that:

| There is no distinction in the application of the

statute of limitations whether the cause of action is

' known or unknown to the —— within the time limited

by the statute.

_ Bendix argues that hyler v- | tripi, 25 Ohio St. 2d 164

as71) ? indicates that the law of ‘Ohio still asides that the

claim of indesy be presented within two years of the acts

alleged to have caused the injuries. Wyler considered the

time from which a statute of limitations for medical

malpractice ran. The appellant urged that the court abandon

its: prior rulings and hold the statute does "not commence to

run until the patient actually discovers, or reasonably

should have ‘Sucesinnh, the negligent act.” Id. at 166.

the eoust ceed at the beginning of its discussion:

“It is generally stated that a cause of wetilians

accrues when the wrongful act complained of is |

committed, and not as of the date the damage is

discovered or reasonably should have been discovered.

E.g., 34 Ohio Jurisprudence 2d 536, Limitation of

ctions, Section 58; 34 American Jurisprudence 94,

Limitation of Actions, Section 115.

a. 71

Id. at 166. After a discussion of the variant approaches

taken to this problem in other jurisdictions, the Ohio

Supreme Court concluded that the statute ran from the

termination of the physician-patient relationship, stating:

Although an examination of the cases [footnote

omitted] reveals that there is much to recommend the

adoption of the discovery rule, we reluctantly conclude

that courts of Ohio' should not decree such an adoption.

We are convinced that to do so would place us in the

obvious and untenable position of having not only.

legislated, but of having done so directly in the face

of a clear and opposite legislative intent [citations

omitted] .

Wyler at 170-71.

2. Bendix has conceded that Brush Beryllium Co. v.

Meckley, 284 F.2d 797 (6th Cir. 1960), supports the use of the

“discovery” rule here. In Brush Beryllium, the plaintiff

developed beryliosis as a result of oo noxious

airborne berylium from the defendant's plant. The beryliosis

("a disease of slowly insidious development in the respira-

tory tract,” id. at 797) first manifested itself after the

expiration of the two-year statute, but. the suit was filed

within two years of that first manifestation. The Sixth

Circuit affirmed the district court's holding that the

statute ran from the time that the effects of the disease

manifest themselves.

Defendant points out that Brush does not consider

the Ohio precedents of Kerns, supra, and Pomeroy Coal, supra,

but rather states, "we find no applicable Ohio. law to °

govern decision of the issue in this case.” Brush at 799.

Brush adopts the reasoning of Urie v. Thompson, 337 U.S. 163

(1949) (an P.E.L.A. case) in holding that the time of

discovery triggers the statute of limitations.

Though the Ohio Supreme Court was aware of both

Brush and Urie, as evidenced by n. 3 in Wyler, at 170, it

did not adopt the discovery rule enunciated in those cases.

Accordingly, the decision in Wyler negates the argument that

Brush states the law of Ohio.

-Ae 071. wrh—o.B-7O4dem-2008

a. 72

Bendix further cites an Ohio Tenth District Court of

Appeals decision in support of its reading of the limitations

statute. In Spangler v. Southern Mills, (Tenth District

Court of Appeals of Ohio, Feb. 2, 1978), the appeals court

affirmed the trial court's dismissal of an asbestosis :

case based upon the expiration of the two-year statute of

limitations. ‘The appeals court refused the appellant's

invitation to adopt the discovery rule for cases of

peneumonoconiosis through reliance on the Ohio Supreme

Court decision in Melnyk v. Cleveland Clinic, 32 Ohio St. 2d

198 (1972) which adopted the discovery rule for cases of

medical malpractice where a physician negligently leaves a

"foreign object” in a surgical patient. ~ On May 11, 1978,

the Ohio Supreme Ont overruled a motion to certify the

record in Spangler.

Mrs. Clutter argues. that the Ohio Supreme Court has

not ruled on the question of when the Ohio statute of

limitations starts to run for asbestosis cases. Plaintiff

points out that the lack of a specific ruling. from that

court leaves this district oqurt free to declare the law of

Ohio as it would be declared by the Ohio Supreme Court.

Plaintiff axgues that this district court is not required to

follow any Ohio lower court decisions ‘(specifically

Spangler, supra) if it is "convinced that the highest state

court would decide differently.” Ruth v. Bituminous Casualty

Corp., 427 F.2d 290, 292 (6th Cir. 1970).

071. 0t-—0- Bo FONSOD-890O

a. 78

Mrs. Clutter argues that:

{I]t is totally unreasonable to expect Mr. Clutter to

have commenced his cause of action in 1966, two years

after date of last employment and exposure to asbestos,

where, as stated above, it was not until August, 1977

that a firm diagnosis of asbestos-related malignant

Pleural mesothelioma was conclusively made.

Plaintiff has cited numerous decisions of jurisdictions that

have adopted the more humane discovery rule rather than the

date-of-the-injury rule. Of these cases, Justice Rutledge’s

opinion for the court in Urie v. Thompson, supra, which adopts

the discovery rule for Federal Employer's Liability Act

claims, best articulates the plight of the plaintiff. suffering

a latent disease in a *non-discovery" jurisdiction.

. If Urie were held barred from prosecuting this

- action because he must be said, as'a matter of law, to

‘have contracted silicosis prior to November 25, 1938,

it would be clear that the federal legislation afforded .

Urie only a delusive remedy. It would mean that at

. some past moment in time, unknown and inherently

unknowable even in retrospect, Urie was charged with

: knowledge of the slow and tragic disintegration of

his lungs; under this view Urie's failure to diagnose

- within the applicable statute of limitations a disease

whose symptoms had not yet obtruded on his consciousness

would constitute waiver of his right to compensation .-

‘at the ultimate ‘day of discovery and disability.

Id. at 169. .

~ Plaintiff argues that Melnyk v. Cleveland Clinic; supra,

indicates that the Ohio Supreme Court would here hold that

the statutory period is tolled until the discovery of

pleural mesothelioma. Relying on the fact that foreign

a. 74

object claims are not susceptible to the proof problems that

are normally associated with "stale” claims, the Ohio

Supreme Court created "an exception to the general rule in

cases such as the one at bar.” Id. at 202. The exception

is expressly for foreign object cases and was premised on the

societal problems and pressures "associated with modern

surgeon-patient relationships.” Nelnyk, at 202. Moreover,

Melny* does not overrule Wyler: | elas

We need not disturb the holding in Wyler, nor

interfere in the affairs of our sister branch. of

government, in order to accord this rule of law the

viability we have determined it must have.

Melnyk, at 201. Hence Melnyk cannot be read as broadly .

as urged by plaintiff. ee

‘ Acknowledging that the discovery rule has — widely

adopted in jurisdictions other than Ohio, this federal court

cannot hold that the Ohio Supreme Court would adopt that

rule for asbestosis cases. In Wyler the court expressly

refused to change Ohio's date-of-the-injury rule in the face

of the Ohio legislature’ Ss failure to do so. Only for’ this

reason does this district court determine that the Ohio

Supreme Court would not adopt the discovery rule for

asbestosis cases.

3. Unlike a foreign object claim where the forceps .

and sponge are tangible and unlikely to have been taken into

the plaintiff by other means, there are proof problems in an

asbestosis case as to whose products at what time were

ingested by the plaintiff.

= 7- 0P1.W>—9.2.7 0-1 300-3000

a. 75

Defendant Bendix's motion for summary judgment on the

survival claims on the ground that the statute of limitations

of O.R.C. §2305.10 has not been complied with is hereby

granted. Summary judgment in favor of the other defendants

on the same ground is granted sua sponte on the survival

claims.

IT IS SO ORDERED.

” —

- ’

Uni States District Judge

a. 76

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.