# Petition — Ortho Pharmaceutical Corp. v. McKenna > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0329%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 976 ## Text 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 ee i rca ois > ao ob 98 vv 00, 9°66 I 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 il 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 iv 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. 2 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 4 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). 5 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). 6 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. 7 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). 8 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. 9 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... .” 10 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.”). 1] 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. 12 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. 13 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 v. 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 2 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. i. 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 3 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 4 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. I. 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 6 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 7 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 8 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 9 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 10 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 1] 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 A. LEON HIGGINBOTHAM, JR., Circuit Judge, dissenting. A. Although I am as moved as my colleagues are by the alleged tragic effects-from Mrs. McKenna’s ingestion of appellee's birth control pills and while I am as convinced as they are that the discovery rule is a humane and 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. B. 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 21 (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 22 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 23 ..., 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 24 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 25 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. C. 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 26 D. 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 27 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 v. 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 2 ” 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 3 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 4 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 5 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 6 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 i= 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 properl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0329%3A1. Public record. Not legal advice.