Petition for Writ of Certiorari — Rowland v. Patterson
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%1°920 1893
No.
IN THE
Supreme Court Of Che United States
OCTOBER TERM, 1991
JANET L. ROWLAND
and DONALD E. ROWLAND
Petitioners,
V.
DONALD A. PATTERSON, M.D,
TOM J. ALTIZER, M.D.,
MICHAEL A. WINSLOW, M.D.,
ROBERT K. HOBBS, M.D.
and ROBERT J. CIRINCIONE
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARVIN ELLIN*
LaVONNA L. VICE
ELLIN & BAKER
1101 St. Paul Street
Baltimore, Maryland 21202
Telephone: (301) 727-1787
Attorneys for Petitioners
; *Counsel of Record
December 4, 1991
Balmar Legal Publishing Divison, Washington, D.C. 20005 (202) 659-3610
“<q
i
QUESTIONS PRESENTED
1. Pursuant to Federal Rule of Civil Procedure 56(c), can
a court usurp the function of the jury and find as a matter of law
that there are no genuine issues of material facts when the
inferences to be drawn from those facts depend upon application
of the “reasonable person” standard?
2. When a State’s highest court has ruled on a point of
law, may a federal court rely upon that state’s intermediate
appellate court decision on the same point of law?
TABLE OF CONTENTS
PAGE
Bee ee PIE Ce et tt te ill
Ee ]
JURISDICTIONAL STATEMENT ......... 2
STATUTORY PROVISIONINVOLVED ...... 2
maraememeres Gr Ire CASE... www se eee 2
REASONS FOR GRANTING THE WRIT ..... 6
I. THIS COURT SHOULD ESTABLISH A
CLEAR AND STRINGENT TEST FOR
DETERMINING WHETHER SUMMARY
JUDGMENT SHOULD BE GRANTED IN
CASES INVOLVING THE APPLICATION
OF A “REASONABLE PERSON”
eg aay se he ee es 6
Il. THE FEDERAL COURT MUST RELY
UPON A STATE’S HIGHEST COURT
RULING ON A POINT OF LAW AND
NOT UPON AN INTERMEDIATE COURT
RULING THAT IS IN CONFLICT WITH
THE HIGHEST COURT’S RULING. ... 13
Se a es ee ee 16
iii
TABLE OF AUTHORITIES
CASES
Anixter v. Home-Stake Production Co., 939 F.2d
1420 (10th Cir.1991) .. 2.2.2.0.
Azalea Meats, Inc. v. Muscat, 386 F.2d 5
(SC. 167)... . se eee.
Baysinger v. Schmid Products Co., 307 Md. 361,
Si ASE oS we ek ec
Cada v. Baxter Healthcare Corp., 920 F.2d 446
‘i: 4. 3 jinn
Celotex Corporation v. Catrett, 477 U.S. 317
eo
Cook v. Baker Equipment Engineering Co. Inc.,
582 F.2d 862 (4th Cir.1978) .........
Durham v. Business Management Associates,
847 F.2d 1505 (11th Cir. 1988) ........
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ....
Fries v. Chicago & Northwestern Transportation
Co., 909 F.2d 1092 (7th Cir. 1990) ......
Kedzierski v. Kedzierski, 899 F.2d 446
PRR SO at ees es ek
Lutheran Hospital v. Levy, 60 Md.App. 227,
482 A.2d 23 (1984), cert. denied, 302
Md. 288, 487 A.2d 292 (1985) ........
Mathews v. Ashland Chemical, Inc., 703 F.2d 921
Oe WI a ee ee hos ws
Milwaukee Area Vo. Tech. v. U.S. Steel Corp.,
847 F.2d 435 (7th Cir. 1988) .........
Pennwalt Corp. v. Nasios, 314 Md. 433, 550
MC os oes oo sh es
PAGES
iv
CASES
Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.),
cert. denied, 342 U.S. 887(1951) .......
Rowland v. Patterson, 852 F.2d 108 (4th Cir. 1988),
rev'd en banc, 882 F.2d 97 (1989) ......
Smith v. Duff and Phelps, Inc., 891 F.2d 1567
CE as ree ek 4
Smith v. States Marine International, Inc., 864
we Pi. ee a eee
TSC Industries, Inc. v. Northway, Inc., 426 U.S.
GIR GIGE 6 oc RE ORS OC eee
United States v. Kubrick, 444 U.S. 111 (1979) ...
STATUTES
og 2 eS. , russ nee eres
Md. Cts. & Jud. Proc. Code Ann. § 3-2A-01
OC Ss i ee ee
Md. Cts. & Jud. Proc. Code Ann. § 5-109 .....
ae U.Bk OS iaeene cree pete ee ae ee
OTHER AUTHORITIES
10 C. Wright & Miller, Federal Practice and Proce-
dare: Cowl 6 iar CRSOOD 6 ce Siece ces
When statute of limitations commences to run
against malpractice action against physician,
surgeon, dentist, or similar practitioner, 80
ADDS a eee eee eee
PAGES
mo NS
a"
No.
IN THE
Supreme Court Of Che United States
OCTOBER TERM, 1991
JANET L. ROWLAND and DONALD E. ROWLAND
Petitioners,
V.
DONALD A. PATTERSON, M.D,
TOM J. ALTIZER, M.D.,
MICHAEL A. WINSLOW, M.D.,
ROBERT K. HOBBS, M.D.
and ROBERT J. CIRINCIONE
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioners, Janet L. Rowland and Donald E. Rowland,
respectfully request that a writ of certiorari issue to review the
judgment of the United States Court of Appeals for the Fourth
Circuit entered in this proceeding on August 15, 1991.
OPINIONS BELOW
The opinions of the Court of Appeals for the Fourth Circuit
(Appendix A) and the district court (Appendix B) which form
the basis of this petition are unreported. The opinion of the
Health Claims Arbitration Office of Maryland (Appendix C) is
unreported. The Maryland circuit court opinion of the Circuit
Court for Washington County (Appendix D) is unreported. The
2
opinion of the Court of Appeals for the Fourth Circuit (Appendix
E) affirming the district court’s dismissal for lack of jurisdiction
is reported at 852 F.2d 108. The opinion of the Court of Appeals
for the Fourth Circuit sitting en banc (Appendix F) and reversing
the district court’s dismissal for lack of jurisdiction is reported
at 882 F.2d 97. The opinion of the district court (Appendix G)
dismissing Petitioners’ claim for lack of jurisdiction is un-
reported.
JURISDICTIONAL STATEMENT
The judgment of the Court of Appeals for the Fourth Circuit
was entered on August 15, 1991. Petition for Rehearing and
Suggestion for Rehearing En Banc was denied on September 9,
1991 and this Petition for Writ of Certiorari was timely filed.
This court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
Rule 56(c) of the Federal Rules of Civil Procedure, Fed. R.
Civ. P. 56(c), provides in pertinent part:
Motion and Proceedings Thereon. The motion [for
summary judgment] shall be served at least 10 days
before the time fixed for the hearing. The adverse
party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.
STATEMENT OF THE CASE
For several months prior to May 24, 1982, Janet L.
Rowland, then thirty-eight years of age, suffered from intermit-
tent low back pain. She visited the Respondents in their office,
submitted to a myelogram, and was advised that the pain and
3
numbness she was experiencing in her left leg was due to a
“bulging disc.” Mrs. Rowland was advised that surgery was
required.
On June 3, 1982, Mrs. Rowland was operated on at
Washington County General Hospital in Hagerstown,
Maryland. Contrary to acceptable standards of care, the Respon-
dent Patterson lacerated her right iliac artery and vena cava.
Within a twenty four hour period following surgery, Mrs.
Rowland submitted to two more emergency surgeries to save
her life.
Following the repairs of the vascular trauma negligently
inflicted by the Respondents, Mrs. Rowlaad’s condition con-
tinued to deteriorate. By June 11, 1982, she was again operated
on to remove a large hematoma and a portion of the vertebral
body. Disc material was removed to relieve pressure on the
nerve roots and prevent further deterioration of Mrs. Rowland’s
condition.
Mrs. Rowland was discharged from Washington County
General Hospital on July 23, 1982 in a permanently disabled
State. Her voluntary bladder and bowel function had been
destroyed. She suffered from unremitting pain in the lower
extremities and lower back.
Atall times pertinent hereto, the Respondents advised Mrs.
Rowland that her condition arose from the complexity of the
surgery. She was never advised that the complications she
suffered from were the result of negligently inflicted injuries to
her iliac artery and vena cava. She was told her condition would
improve. When Mrs. Rowland was discharged on July 23, 1982,
she believed she had suffered from the natural complications of
surgery.
Mrs. Rowland’s complications were such that she was
re-confined by Dr. Patterson at Washington County General
Hospital on January 14, 1983 with an admitting diagnosis of
4
“chronic lumbar arachnoiditis.” She was placed in traction and
other treatments were attempted until Mrs. Rowland was dis-
charged on January 14, 1983.
In the early part of 1983, a general practitioner recom-
mended to Mrs. Rowland that she seek a second opinion as to
the reason for her disability, pain, and complications. Thus, in
March of 1983, she sought the opinion of a specialist, Dr.
Thomas Ducker, at the University of Maryland Hospital in
Baltimore, Maryland. She was admitted for various studies from
March 13 to March 23, 1983.
During this time, it was suggested to the Petitioners for the
first time, by Dr. Ducker, that Mrs. Rowland’s complications
were due to medical negligence. Prior to this point, the
Petitioners in their earlier conversations in June of 1982 with
the doctors at the Washington County General Hospital were
told that the damage and complications suffered by Mrs.
Rowland were a result of natural complications of surgery.
Subsequent to their visit to Dr. Ducker, Petitioners sought
the advice of counsel and on July 16, 1985 filed a medical
malpractice claim with the Health Claims Arbitration Office of
the State of Maryland.!
On motion by the Respondents, the Panel Chairman
granted summary judgment on May 6, 1987 stating that the
statute of limitations had run on the Petitioners’ claims. On June
15, 1987, the Petitioners filed a complaint in the United States
District Court for the District of Maryland.?
Maryland law requires that all medical malpractice claims be ar-
bitrated as a pre-condition to filing in court. Md. Cts. & Jud. Proc. Code Ann.
§ 3-2A-01 et. seq. The filing of a claim in the Health Claims Arbitration
Office is a filing for statute of limitation purposes. The arbitration panel is
comprised of three persons, an attorney (Panel Chairman) a physician and a
layperson. All matters of law are decided by the Panel Chairman individually.
+
—
Jurisdiction was based on diversity of citizenship. At the time the
complaint was filed Petitioners were citizens of West Virginia and Respon-
dents were citizens of Maryland.
5
Respondents renewed their motion for summary judgment
in the district court on the basis that the statute of limitations had
run on Petitioners’ claims. On July 16, 1990 the district court
granted the motion.? On August 15, 1991 the Court of Appeals
for the Fourth Circuit affirmed the district court and on Septem-
ber 9, 1991 denied the Rowlands’ Petition for Rehearing and
Suggestion for Rehearing En Banc.
At issue, for statute of limitation purposes, was whether
Mrs. Rowland was on notice of her claim prior to the running
of the statute.* In Maryland, as in many other jurisdictions, such
notice occurs when a reasonably prudent person in the same or
similar circumstances either knew or should have known of
possible wrongdoing. Baysinger v. Schmid Products Co., 307
Md. 361, 514 A.2d 1 (1986).°
> Petitioners’ complaint was originally dismissed on October 5, 1987
for lack of subject matter jurisdiction. On July 18, 1988 the Court of Appeals
for the Fourth Circuit affirmed. Rowland v. Patterson, 852 F.2d 108 (4th Cir.
1988). However, the court, sitting en banc reversed the district court on
August 10, 1989. Rowland v. Patterson, 882 F.2d 97 (4th Cir. 1989).
* Md. Cts. & Jud. Proc. Code Ann § 5-109 states that a claim for medical
malpractice must be brought within three years from the date of discovery or
five years from the date of the injury - whichever is less. It was not disputed
that the Petitioners brought their action within the five year limitation.
> This is what is known as the “discovery rule.” Any differences between
the jurisdictions in applying the “discovery rule” usually involves the quan-
tum of knowledge necessary to trigger the running of the statute of limita-
tions. For example, in Maryland the statute does not begin to run until the
plaintiff has knowledge that a duty was owed, that it was breached and that
the injuries were a result thereof. Pennwalt Corporation v. Nasios, 314 Md.
433, 550 A.2d 1155 (1988). Whereas other jurisdictions may only require
knowledge of injury and causation. United States v. Kubrick, 444 U.S. 111
(1979) (malpractice claim brought pursuant to the Federal Tort Claims Act).
See also, When statute of limitations commences to run against malpractice
action against physician, surgeon, dentist, or similar practitioner, 80
A.L.R.2d 368.
6
In the instant case both the district court and the court of
appeals held as a matter of law that a reasonable person in Mrs.
Rowland’s situation would have undertaken further investiga-
tion more than three years prior to her commencing suit. In so
deciding, both courts usurped the function of the jury and relied
upon their own judgment as to what a reasonable person would
do in the same situation as Mrs. Rowland. In support of their
holdings, both courts relied on the intermediate appellate
decision of Lutheran Hospital v. Levy, 60 Md.App. 227, 482
A.2d 23 (1984), cert. denied, 302 Md. 288, 487 A.2d 292 (1985)
that was decided prior to a contrary decision by Maryland’s
highest court in Baysinger v. Schmid Products co., 307 Md. 361,
514 A.2d 1 (1986).
Moreover, both courts relied upon the same intermediate
appellate decision in support of their decision as to the quantum
of knowledge required to put a person on notice of a claim.
Instead of requiring that a person know all four elements of a
malpractice claim i.e., duty, breach, causation and harm, both
courts only require ‘ a finding that Mrs. Rowland was aware of
her injuries and that they resulted from her surgery.
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD ESTABLISH A
CLEAR AND STRINGENT TEST FOR
DETERMINING WHETHER SUMMARY
JUDGMENT SHOULD BE GRANTED IN
CASES INVOLVING THE APPLICATION OF
A “REASONABLE PERSON” STANDARD.
This Court needs to establish a clear and stringent test for
determining when summary judgment is appropriate in statute
of limitation cases wherein the “reasonable person” standard is
implicated. Currently, Rule 56(c) of the Federal Rules of Civil
Procedure provide that summary judgment shall lie if “there is
no genuine issue as to any material fact and that the moving party
5
is entitled to a judgment as a matter of law.” In most cases the
courts are confronted with whether or not there are any conflict-
ing material facts or whether or not a party has established facts
sufficient to get his case to a jury. See, e.g., Celotex Corporation
v. Catrett, 477 U.S. 317 (1986). In such cases, once the un-
disputed facts are determined, it is relatively simple to apply the
law to determine whether judgment should issue.
However, in many cases in which summary judgment is
sought on the basis that an applicable statute of limitations has
run, the facts themselves are not in dispute, but rather, the
inferences to be drawn from those facts are disputed. This is
particularly true in situations where application of a “discovery
rule” is necessary for a final determination. Because application
of the “discovery rule” necessarily involves judging the
plaintiff's actions according to a “reasonable person” standard,
summary judgment should rarely, if ever, be available. Indeed,
this Court suggested as much in 7SC I/ndustries, Inc. v.
Northway, Inc., 426 U.S. 438, 450, n.12 (1976)(citing 10 C.
Wright & Miller, Federal Practice and Procedure: Civil § 2729
(1973)), wherein it was stated that the “jury’s unique com-
petence in applying the “reasonable man” standard is thought
ordinarily to preclude summary judgment in negligence cases.”
The need for this Court’s guidance in this area cannot be
overstated. Because the running of the statute of limitations is a
defense to nearly every type of civil action and because many
jurisdictions, including the federal, adopt some type of “dis-
covery rule”, the Court’s granting of the writ in the instant case
will resolve an important question as to what standard or test
should be applied when summary judgment is sought and the
“reasonable person” test is implicated.
Although all_of the circuits, when confronted with the
granting or denial of summary judgment in statute of limitation
cases, rely on Rule 56(c) for initially determining whether there
are any material facts in dispute, they are split as to what, if any,
8
standard should be applied when the facts themselves are not in
dispute but rather the inferences that should be drawn when the
“reasonable person” standard is implicated.
Thus, some circuits routinely grant or affirm summary
judgment when the facts are not in dispute and simply find as a
matter of law that a reasonable person would have been on notice
of a possible claim at some point beyond the applicable statute
of limitations. Other circuits recognize that whenever the in-
ferences themselves are subject to a “reasonable person” stand-
ard, they are in and of themselves genuine issues of material fact
precluding summary judgment.
An example of this can be found by comparing the instant
case with admonitions of the Fourth Circuit in Cook v. Baker
Equipment Engineering Co., Inc. ,582 F.2d 862, 865 (1978)(em-
phasis in original) wherein the court stated:
In no other area of the law does the lay jury play a
more definitive role than in a negligence case when it
is required to determine whether an actor’s conduct is
prudent and reasonable under the given circumstan-
ces... The inferences to be drawn from the proofs turn
on the degree of corroboration mixed with the overall
skill of persuasion demonstrated by the respective
- adversaries... With this understanding, it should be
readily perceived that a summary proceeding which
denies the parties the right of trial by jury and which
attempts to decide the case on abbreviated proof
should rarely be used in negligence suits.
The court continued and quoting from Pierce v. Ford Motor Co.,
190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887 (1951):
It is only where it is perfectly clear that there are no
issues in the case that a summary judgment is proper.
Even in cases where the judge is of opinion that he
will have to direct a verdict for one party or the other
9
on the issues that have been raised, he should ordinari-
ly hear the evidence and direct the verdict rather than
attempt to try the case in advance on a motion for
summary judgment...
Id.
Yet, in the instant case, the Fourth Circuit held that a
reasonable person in the same or similar circumstances as Mrs.
Rowland would have been on notice of a possible claim at a time
outside the statute of limitations. This is despite the undisputed
fact that Mrs. Rowland was assured that her injuries were the
result of natural complications of surgery, despite the un-
disputed fact that Mrs. Rowland continued under the care of the
negligent physician and despite the undisputed fact that Mrs.
Rowland was still confined to the hospital at a point in time that
the court held she was on notice of her claim.
In so holding the Fourth Circuit simply stated that “{W]hile
the Rowlands obviously did not have the expertise of Dr.
Ducker, they did have sufficient information by June 12, 1982
to cause a reasonable person to investigate further to see if
malpractice had occurred.” App. A, at p. 5-a. Thus, not only did
the district court and the Fourth Circuit deny the Rowlands the
right to have a jury decide what a “reasonable person” would
have done in the same or similar circumstances, neither court
acknowledged whether the inferences to be drawn from the
undisputed facts in and of themselves create a genuine issue of
material fact. Moreover, in the absence of any stated test or
standard by which the courts measure the appropriateness of
granting summary judgment when the “reasonable person”
standard is implicated, it is unclear how the courts measured the
Rowland’s actions against that of a reasonable person.
In looking to the other circuits itis abundantly apparent that
the lack of any standard for measuring a party’s actions against
that of a reasonable person has produced anomalous and incon-
sistent results. The most striking example of this is the Fifth
10
Circuit’s decision in Smith v. States Marine International, Inc.,
864 F.2d 410 (Sth Cir. 1989) and the Seventh Circuit’s decision
in Fries v. Chicago & Northwestern Transportation Co., 909
F.2d 1092 (7th Cir. 1990).
The undisputed facts in Smith revealed that the plaintiff,
while working in the engine room of various ships, had been
exposed to loud noises on a continuing basis. He suffered
temporary hearing loss which returned after being away from
the noise. In the mid-1970’s the plaintiff began to notice
problems with his hearing and despite pleading from his spouse
and friends, did not seek medical attention until May 1986. It
was not until February of 1987 that an action was filed against
the employer.
The district court granted summary judgment in favor of
the defendant on the basis that the plaintiff knew or had
reasonable opportunity to discover his cause of action. In revers-
ing, the Fifth Circuit noted that on the undisputed facts it would
be up to the trier of fact to determine what inferences should be
drawn from those facts and whether a reasonable person would
have been on notice of a claim.
In Fries the undisputed facts revealed that the plaintiff,
while working as a machinist, had been exposed to loud noises
on a continuing basis. He suffered from a ringing in his ears
which only subsided after being away from work for a period of
time. As early as 1981 the plaintiff began to notice problems
with his hearing but did not seek medical treatment until 1985
and did not file his action until 1987.
The district court granted the defendant’s motion for sum-
mary judgment on the basis that the plaintiff knew or reasonably
should have known of a possible claim as early as 1981. The
Seventh Circuit agreed, stating that a reasonable person would
have investigated the cause of his injury in 1981.
11
It could be argued that because these cases involve applica-
tion of the “reasonable person” standard and they are so fact
dependent, it would be difficult, if not impossible, to fashion a
uniform standard for deciding summary judgment. However, as
the decisions in Smith and Fries, supra, indicate, it is clear that
the lack of a discernable standard produces anomalous results
even when the facts are identical. Moreover, such an argument
actually points out the need for a uniform standard which would
allow most if not all such cases to be decided by a jury. It is
precisely when the courts begin distinguishing the nuances of
the fact patterns, to decide whether summary judgment is ap-
propriate, that inconsistent results follow.
A further comparison of the Seventh Circuit’s approach
with that of the Fifth Circuit’s indicates a discernable trend
consistent with those court’s rulings in Smith and Fries, supra.
See, e.g., Milwaukee Area Vo. Tech. v. U.S. Steel Corp., 847
F.2d 435 (7th Cir. 1988)(affirming summary judgment as to
notice of claim); Cada v. Baxter Healthcare Corp., 920 F.2d
446 (7th Cir. 1990)(same); Kedzierski v. Kedzierski, 899 F.2d
681 (7th Cir. 1990)(same); Mathews v. Ashland Chemical, Inc.,
703 F.2d 921 (Sth Cir. 1983)(issues requiring determination of
reasonableness of acts and conduct of parties precludes sum-
mary judgment).
Another example of how the circuits are inconsistently
applying the “reasonable person” standard can be found in cases
alleging securities fraud. In these type of cases the issue is
whether a reasonably prudent investor in the same or similar
circumstances as the party alleging the fraud would have been
on notice as to possible fraud and undertaken further investiga-
tion prior to the running of the statute of limitations.
For example, in Durham v. Business Management As-
sociates, 847 F.2d 1505 (11th Cir. 1988), investors in a limited
partnership brought a securities fraud action alleging that the
partnership was a sham. In affirming the district court’s denial
12
of summary judgment the Eleventh Circuit followed the Fifth
Circuit’s reasoning and held:
Inevitably the factual issue of due diligence involves,
to some extent at least, the state of mind of the person
whose conduct is to be measured against this test and
it is simply not feasible to resolve such an issue on
motion for summary judgment.
Id. at 1509 (quoting Azalea Meats, Inc. v. Muscat, 386 F.2d 5
(Sth Cir. 1967).
In Smith v. Duff and Phelps, Inc., 891 F.2d 1567 (11th Cir.
1990), the Eleventh Circuit again affirmed the denial of sum-
mary judgment notwithstanding that the undisputed facts
revealed that the plaintiffs had received information in the form
of letters and newspaper articles which indicated that something
was amiss concerning the price of certain stock. The court held
that “a genuine issue of material fact remains regarding whether
the February 1984 letter and the various Wall Street Journal
articles would have put a reasonable person on notice of fraud
and whether Smith exercised due diligence in determining
whether he had been defrauded. Such questions are best resolved
by the jury.” /d. at 1572.
On the other hand, the Tenth Circuit, in Anixter v. Home-
Stake Production Co., 939 F.2d 1420 (10th Cir. 1991), has
followed the Seventh Circuit’s lead by substituting its judgment
as to what a reasonable person would do with that of the jury’s.
In Anixter, the district court denied defendants’ motion to
dismiss on limitations ground and a jury returned a verdict in
favor of the plaintiffs. The Tenth Circuit reversed and held that
the plaintiffs’ claim was time barred because reasonable inves-
tors in the same circumstances would have been on inquiry
notice of their claims when they became aware of an action filed
by the Securities and Exchange Commission (SEC) together
with an article which appeared in the Wall Street Journal.
13
Thus, it is clear that the circuits are split as to when a case
should proceed to a jury when the “reasonable person” standard
is implicated. Although no clear test has emerged from any of
the circuits, there is a discernable difference among the circuits
as to the burden a litigant must bear to survive a motion for
summary judgment.
Therefore, it is urged that this Court grant this Petition for
Writ of Certiorari in order to establish a clear test for determining
whether summary judgment should be granted in cases involv-
ing application of the “reasonable person” standard.
If. THE FEDERAL COURT MUST RELY UPON
A STATE’S HIGHEST COURT RULING ON
A POINT OF LAW AND NOT UPON AN IN-
TERMEDIATE COURT RULING THAT IS
IN CONFLICT WITH THE HIGHEST
COURT’S RULING.
This Court’s decision in Erie R. Co. v. Tompkins, 304 U.S.
64 (1938) mandates that federal courts sitting in diversity apply
the law of the state in which the action arose. This court has also
stated that the law of the state is that expressed by statute and
by the state’s highest court. /d. at 78. In the instant case the
district court and the Court of Appeals for the Fourth Circuit
ruled in contravention of this doctrine by not looking to
Maryland’s highest court for their decisions.
Both the district court and the Fourth Circuit relied upon
an intermediate Maryland appellate court (Maryland Court of
Special Appeals) decision for two points of law, both of which
have been expressly overruled by Maryland’s highest court
(Maryland Court of Appeals), in granting summary judgment to
the Respondents.
First, both courts relied on Lutheran Hospital v. Levy, 60
Md.App. 227, 482 A.2d 23 (1984), cert. denied, 302 Md. 288,
487 A.2d 292 (1985), for the proposition that summary judg-
14
ment is appropriate in cases involving whether a reasonable
person would have been on notice of a possible claim. However,
the plaintiff in Levy admitted in her testimony that she was aware
of all the elements of her cause of action and indeed had engaged
the services of an attorney to prosecute her claim. In reversing
the trial court, the Maryland Court of Special Appeals held that
the judge had incorrectly applied the law in that he extended the
running of the statute of limitations to allow a reasonable time
for investigation.
To the extent Levy might be interpreted for allowing a court
to find as a matter of law that a reasonable person would have
undertaken further investigation of a claim, it was expressly
rejected by the Maryland Court of Appeals in Baysinger v.
Schmid Products Co., 307 Md. 361, 514 A.2d 1, 4 (1986)(cita-
tions omitted):
We shall assume, without deciding, that there is no
dispute of material, primary fact in the instant case.
From the primary facts some tribunal must deduce
when the plaintiffs were on notice. That ultimate fact
is ordinarily a question for the trier of facts going to
the merits. Whether or not the plaintiffs failure to
discover his cause of action was due to failure on his
part to use due diligence, or to the fact that defendant
so concealed the wrong that plaintiff was unable to
discover it by the exercise of due diligence, is or-
dinarily a question of fact for the jury.
Second, both courts again relied on Levy, supra, for the proposi-
tion that a party need only be on notice as to two of the necessary
elements of a tort action i.e.; causation and harm. The district
court held that “knowledge of an actionable claim is not neces-
sary to trigger the running of the limitations period. Instead, all
that is required is knowledge of the injury and its cause.” App.
B at pp. Sb-6b. The Fourth Circuit agreed with this analysis.
App. A at p. 5-a.
15
However, this reasoning was expressly rejected by the
Maryland Court of Appeals in Pennwalt Corp. v. Nasios, 314
Md. 433, 550 A.2d 1155 (1988). Interestingly, this case arose
out of a question certified to the United States District Court for
the District of Maryland. In Pennwalt the court held that:
To bring a negligence action, a plaintiff must prove:
(1) a duty owed by the defendant to the plaintiff; (2)
a breach of that duty by the defendant; (3) an injury
to the plaintiff; and (4) that injury was proximately
caused by the defendant’s breach of duty.... In our
prior cases, discovery of elements (1) and (2) were not
in question. We see no reason, however, to hold that
a plaintiff who cannot discover injury or causation
should be entitled to relief while a plaintiff who
cannot discover breach of duty is left without a
remedy. A plaintiff who cannot gain knowledge of a
defendant’s breach of duty is in the same position as
one who cannot discover injury because both are
“blamelessly ignorant” and cannot be said to have
slept on their rights.
550 A.2d at 1165-1166.
Thus, both the district court and the Fourth Circuit ignored
Maryland law in direct contravention of Erie R. Co. v. Tompkins,
supra. Therefore, this Court should issue the writ in the instant
case to rectify a glaring mistake and to ensure that the federal
courts not only apply state law while sitting in diversity, but
apply the law as enunciated by that state’s highest court.
16
CONCLUSION
Petitioners respectfully request that their petition for a writ
of certiorari be granted.
Respectfully submitted,
Marvin Ellin*
LaVonna L. Vice
Ellin & Baker
1101 St. Paul Street
Baltimore, Maryland 21202
Telephone: (301)727-1787
Attorneys for Petitioners
*(Counsel of Record)
APPENDIX A
l-a
No. 90-1074
UNPUBLISHED
United States Court Of Appeals
FOR THE FOURTH CIRCUIT
Janet L. Rowland; Donald E. Rowland,
Plaintiffs-Appellants,
¥.
Donald A. Patterson, M.D.; Tom J. Altizer, M.D.;
Michael A. Winslow, M.D.; Robert K. Hobbs, M,D:
Robert J. Cirincione, M.D..,
Defendants-Appellees.
Appeal from the United States District
Court for the District of Maryland, at Baltimore
Norman P. Ramsey, District Judge,
(CA-87-1560-R)
Argued: March 4, 1991
Decided: August 15, 1991 é
Before PHILLIPS and MURNAGHAN, Circuit Judges, and
BRITT, United States District Judge for the Eastern District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Phillips wrote the
opinion, in which Judge Murnaghan and Judge Britt joined.
OPINION
PHILLIPS, Circuit Judge:
Janet and Donald Rowland appeal the district court’s dis-
missal by summary judgment of their medical malpractice ac-
tion on the ground that it was barred by the statute of limitations.
2-a
The Rowlands principally contend that the district court erred
in determining the date on which their claims against the defen-
dants accrued. We disagree and affirm.
In May 1982, Janet Rowland sought treatment from Dr.
Donald Patterson for a back injury she had sustained in a car
accident. Dr. Patterson recommended surgery, and told Mrs.
Rowland that following surgery she would be out of the hospital
within two weeks and would be able to return to work in six
weeks. On June 3, 1982, Mrs. Rowland underwent back surgery
at the Washington County Hospital. Dr. Patterson performed
this surgery, during the course of which Mrs. Rowland’s right
iliac artery and vena cava were lacerated.
Because of the lacerations, Mrs. Rowland was taken back
to the operating room for an arteriogram the next morning. The
arteriogram indicated that Mrs. Rowland had to undergo emer-
gency surgery to repair the damaged blood vessel. Dr. Su, a
vascular surgeon, performed this surgery on June 5, 1982. After
the procedure, Dr. Su told Mr. Rowland that his wife had almost
died, and that her worsened condition after the back surgery was
caused by Dr. Pattersons’ puncturing of the vena cava. J.A. at
454-56. Mrs. Rowland also learned at that time of Dr.
Patterson’s puncturing of the vena cava. J.A. at 325-26.
After Dr. Su’s surgery, Mrs. Rowland remained in bad
condition — paralyzed from her waist down. Sometime before
June 11, 1982, she therefore consulted Dr. Carey, a neurosur-
geon. Dr. Carey told her that further surgery was needed,
indicating that her vena cava had been cut during Dr. Patterson’s
surgery. By Mrs. Rowland’s admission, therefore, she knew at
the time she consulted with Dr. Carey, some time before June
11, 1982, that something had gone wrong during Dr. Patterson’s
surgery. J.A. at 331 (deposition testimony). On June 11, 1982,
Dr. Carey performed the surgery. After that procedure, Mrs.
3-a
Rowland still felt numb from her waist down. Her condition did
not begin to improve until she started physical therapy.
Mrs. Rowland was discharged from the hospital on July 23,
1982, seven weeks after Dr. Patterson’s initial surgery. At that
point, her condition remained poor, as she had no feeling from
her waist to her feet. She also had to take medication to control
her bladder and her bowels. Because of her medical problems,
Mrs. Rowland could not return to work.
In March 1983, following the advice of a general prac-
titioner, Mrs. Rowland sought the opinion of Dr. Ducker at the
University of Maryland hospital. After studying Mrs.
Rowland’s condition, Dr. Ducker concluded that Mrs. Rowland
suffered from multiple lower nerve dysfunctions caused by the
injuries she sustained during Dr. Patterson’s surgery. Dr. Ducker
also told the Rowlands that Mrs. Rowland’s complications were
caused by medical malpractice, and he suggested a lawsuit
against Dr. Patterson. The Rowlands did decide to file suit, but
waited until July 16, 1985 to do so. At that time, they sued Dr.
Patterson and various other members of the Washington County
Hospital staff as of the date of Pattersons’s surgery, claiming
personal injury and loss of consortium.
After discovery, the district court granted the defendants’
motion for summary judgment, concluding that as a matter of
law the action was time-barred. Specifically, the court held that
under Maryland law, controlling in this diversity action, the
Rowlands’ malpractice claims accrued no later than June 12,
1982, following Dr. Carey’s surgery, and was barred by
Maryland’s three-year medical malpractice “discovery” statute.
This appeal followed.
4-a
II
Under Md. Cts. & Jud. Proc. Code Ann. § 5-109(a).
[a]n action for damages for an injury arising out of the
rendering of or failure to render professional services by a health
care provider...shall be filed within the earlier of: (1) five years
of the time the injury was committed; or (2) three years of the
date the injury was discovered.
It is undisputed that in this case § 5-109(2), the three years
from date of discovery statute of limitations applies, as the
shorter of the two limits. The questions are (1) when, as a matter
of Maryland law, is discovery deemed to have occurred, hence
the claim for medical malpractice to have accrued?; and (2)
when, under the proper discovery rule, did discovery, hence
accrual, occur here?
Under Maryland law, discovery occurs when the claimant
first has either actual knowledge of the wrong or sufficient
information to cause a reasonable person to investigate the
possibility of wrong, in which case the person is charged with
knowledge of all the facts that would have been discovered by
a reasonably diligent investigation. See Poffenberger v. Risser,
431 A.2d 677, 680-81 (Md. 1981) (“the cause of action accrues
when the claimant in fact knew or reasonably should have
known of the wrong.”); Lutheran Hospital v. Levy, 482 A.2d 23,
29 (Md. App. 1984) (“The crucial date is the date the claimant
is put upon inquiry, not the date an expert concludes there has
been malpractice.”).
Applying these discovery principles, the district court con-
cluded that on the undisputed facts of record, the Rowlands were
on inquiry notice by the time Mrs. Rowland discussed her
condition with Dr. Carey following his surgery on June 11,
1982. The district court summarized the Rowlands’ knowledge
as of that time as follows:
S-a
In addition to experiencing the harmful effects of Dr.
Patterson’s surgery, both plaintiffs were provided an explana-
tion for their unanticipated difficulties. Dr. Su explained to
Donald [Mr. Rowland] that Janet’s [Mrs. Rowland] worsened
condition was the result of damage to the vena cava, which had
been inadvertently lacerated during Dr. Patterson’s surgery. Dr.
Carey confirmed Dr. Su’s findings to Janet during his consult-
ations with her following the June 11, 1982, surgery. Thus, by
mid June at the latest, the Rowlands knew the following: Janet’s
surgery had gone badly; she required three additional proce-
dures to correct the errors of Dr. Pattersons’ initial surgery; and
they were both told that an unusual event, laceration of the vena
cava, had caused her problem.
Rowland v. Patterson, Civil Action No. R-87-1560, slip op.
at 8 (D. Md. July 16, 1990). mi
The Rowlands contend that this conclusion was not war-
ranted as a matter of law on the summary judgment record, that
there was evidence from which a trier of fact could have found
instead that discovery only occurred when Dr. Ducker first
directly suggested Dr. Pattersons’s fault in March of 1983. As
the district court correctly pointed out, however, Dr. Ducker did
not provide the Rowlands with any new facts — his conclusion
that malpractice had occurred was based on information the
Rowlands already had available to them. While the Rowlands
obviously did not have the expertise of Dr. Ducker, they did
have sufficient information by June 12, 1982 to cause a
reasonable person to investigate further to see if malpractice had
occurred. The district court therefore do not err in concluding
that discovery, for purposes of the statute of limitations, oc-
curred no later than June 12, 1982.
In a fall-back position, the Rowlands argue that the
Maryland continuous treatment doctrine tolls the statute of
limitations. In Maryland, however, the old common law con-
tinuous treatment rule has been held not to survive the discovery
6-a
rule of § 5-109(2), which controls here. Hill v. Fitzgerald, 501
A.2d 27, 32 (Md. 1985) (“provisions of § 5-109... are plainly
inconsistent with the survival of the continuing treatment rule”).
The Rowlands argue that even if we affirm the district
court’s grant of summary judgment as to malpractice claims
against Dr. Patterson based on his initial surgery, we should find
that they have alleged “separate and independent acts of
negligence that occurred up to and including January 14, 1983”
that accordingly were not time-barred. Appellant’s Br. at 21,
citing Jones v. Speed, 577 A.2d 64 (1990). In Jones, the
Maryland Court of Appeals remanded to permit the plaintiffs to
amend their complaint so as to allege acts within the limitations
period as discrete claims despite their discovery of earlier acts
which were time-barred by the discovery rule. The original
Jones complaint contained sixteen counts, each alleging that by
a separate act Dr. Speed was negligent in failing to properly
diagnose Mrs. Jones’ condition, and a seventeenth count alleg-
ing loss of consortium. Although the first nine counts, which
described Mrs. Jones’ first nine visits with Dr. Speed, clearly
were barred even if considered as separate “claims,” by the
five-year statute of limitations, the later counts, if so considered,
were within the statutory period. Over Dr. Speed’s objections,
the appellate court affirmed dismissal of only the first nine
counts and remanded to allow the Joneses to amend to specifi-
cally allege the later acts within the limitations period as one
separate, discrete claim of malpractice.
In the present case, the Rowlands refer us to paragraphs 21
and 22 of their Statement in Support of Claim. J.A. at 543. These
paragraphs read as follows:
21. In support of the Claimant’s contention that she had not
been informed by the Defendant Patterson that he had inflicted
injury to her vascular system and had further ignered cauda
equina compression which had been permitted to exist in the
postsurgical period is the fact that she permitted the Defendant
7-a
Patterson to reconfine her at the Washington County Hospital
on January 14, 1983. She had an admitting diagnosis of “chronic
lumbar arachnoiditis.”
22. In spite of the fact that the Defendant Patterson knew
or by the exercise of due care was charged with such knowledge
that the Claimant’s disability and pain was from permanently
injured nerve roots which arose from the surgery of June 3, 1982
and his failure to promptly recognize and decompress the cauda
equina immediately following manifestation of the paralysis, he
nonetheless ordered traction for her. The claimant remained
confined by these defendants until January 26, 1983, at which
time she was discharged in essentially the same condition as she
was upon her admission on January 14, 1983.
J.A. at 543. These paragraphs also appear as paragraphs 26
and 27 of Count I of the Rowlands’ complaint. J.A. at 13. The
Rowlands argue that, as inJones v. Speed, these alleged acts of
negligence occurring within the three-year limitation period
should not be held time-barred on summary judgment.
Aside from the fact that this theory seems not to have been
advanced in the district court, the allegations relied upon by the
Rowlands do not, as did those of the Jones plaintiffs, arguably
constitute separate discrete acts of negligence giving rise to
separate claims. The first is simply an argumentative factual
assertion designed to demonstrate original ignorance (non-dis-
covery) of the injury. The second merely describes an inter-
mediate course of treatment which is not alleged to have caused
any separate, discrete injury.
By contrast, the Jones plaintiffs had alleged, and offered
affidavit support for the allegation, that each of successive,
separate treatments provided by their doctor had constituted the
negligent infliction of distinct injury.
8-a
We are therefore not persuaded to take the course here that
the Maryland appellate court thought warranted in Jones v.
Speed in the interest of justice.
AFFIRMED
/s/ Norman P, Ramsey
Norman P. Ramsey
United States District Judge
APPENDIX B
’ —s
1-b
CIVIL ACTION NO. R-87-1560
IN THE
United States District Court
FOR THE DISTRICT OF MARYLAND
JANET L. ROWLAND, ET AL
Plaintiffs
vo
DONALD A. PATTERSON, M.D., ET AL.
Defendants
MEMORANDUM AND ORDER
Pending before the Court in the above-captioned case are
two sets of motions. Defendant Robert J. Cirincione, M.D., has
filed a motion to dismiss or for summary judgment, or in the
alternative, for more definite statement. Defendants Donald A.
Patterson, M.D., Robert J. Hobbs, M.D., Michael A. Winslow,
M.D., and Tom J. Altizer, M.D., have jointly moved for sum-
mary judgment. The plaintiffs have filed oppositions to both sets
of motions, and counsel for Dr. Cirincione and Dr. Patterson
have informed the Court that they do not wish to file replies to
the Rowlands’ oppositions. Finding no hearing necessary, the
Court is now prepared to rule without need for a hearing. Local
Rule 105.6 (D. Md. 1989). For the reasons set forth below, the
motions for summary judgment will be granted.
I. Background
Plaintiffs, Janet Rowland (“Janet”) and her husband
(“Donald”), bring this action seeking compensation for injuries
resulting from a back operation performed on Janet at the
Washington County Hospital. The defendants named in the
Complaint were all members of the hospital's medical staff on
2-b
the date of the surgery. The action is brought under the tort
theories of medical malpractice and respondent superior. For
the most part, the facts surrounding the Janet’s injuries are
undisputed.!
In May 1982, Janet sought treatment from Dr. Patterson for
injuries sustained in an automobile accident. She complained of
pain in her lower back and hip, as well as numbness in her leg.
After an examination, Dr. Patterson advised Janet that she
required surgery and indicated that after the operation, she
would be released from the hospital within two weeks and be
able to return to work within six weeks. Based on the pre-opera-
tive discussions with the defendant, Donald understood that the
purpose of the operation was to alleviate his wife’s pain and,
therefore, anticipated that her condition would improve follow-
ing the surgery.
The alleged negligent surgery was performed by Dr. Pat-
terson on June 3, 1982. The following morning Donald learned
that his wife was being rushed back into the operating room for
an arteriogram procedure, which was to be performed by another
physician. Donald was instructed by the medical staff to leave
the hospital and wait at home for further information. Later that
day Dr. Su telephoned the plaintiff and explained to him that
Janet’s life was in danger and, as a result, surgery was required.
Dr. Su performed the operation on June 5, 1982. After the
surgery, Dr. Su informed Donald that Janet’s worsened condi-
tion, which included lower body paralysis, was the result of
complications which arose during Dr. Patterson’s surgery. Dr.
Su further explained that during the back surgery, a major blood
vessel, the vena cava, had inadvertently been punctured twice.
Janet’s condition continued to deteriorate. Dr. Carey, a
neurosurgeon, examined the plaintiff and determined that
' To the extent there are any facts in dispute, the Court must, for the
purspose of this ruling, view the facts in a light most favorable to the
plaintiffs.
3-b
”_
another operation was necessary to repair the damage to Janet’s
lower back. After performing the operation on June 11, Dr.
Carey explained to Janet that her worsened health was the result
of damage to the vena cava, which had been cut during Dr.
Patterson’s surgery.
Janet was finally discharged from the hospital on July 23,
1982, seven weeks after her initial surgery. At that time, she
experienced severe pain and discomfort and had little control
over her lower body. Moreover, Janet was unable to walk
without assistance and was placed on medication to regulate her
bowel and bladder functions. Due to her weakened state and
poor health, Janet was unable to return to her employment as a
nurse’s aide.
In March of 1983, Janet was examined by Dr. Ducker at
the University of Maryland Hospital. Dr. Ducker studied Janet’s
medical records and tested her lower body reflexes. He then
explained to the Rowlands that Dr. Patterson’s surgical proce-
dure was relatively simple and suggested that negligence may
have taken place since these type of health complications should
not have resulted from the surgery.
The Rowlands however, waited until July 16, 1985, to file
Suit pursuant to the Maryland Health Care Malpractice Claims
Act. Md. Cts. & Jud. Proc. Code Ann. § 3-2A-01 et seq. (Repl.
Vol. 1989). The defendants moved for summary judgment,
claiming that the action was barred because the statute of
limitations had run. The arbitration chairman granted the
defendants’ motion and the plaintiffs subsequently filed suit in
this Court. The defendants once again move for summary judg-
ment.
II. Standards for Summary Judgment
Summary judgment under Rule 56 of the Federal Rules of
Civil Procedure serves the important purpose of “conserv[ing]
judicial time and energy by avoiding unnecessary trial and by
4-b
providing a Speedy and efficient summary disposition” of litiga-
tion in which the plaintiff fails to make some minimal showing
that the defendant may be liable on the claims alleged. Bland v.
Norfolk & S.R., 406 F.2d 863, 866 (4th Cir. 1969).
The applicable standards for analyzing a motion for sum-
mary judgment under Rule 56 are well-established. The defen-
dant seeking summary judgment bears the burden of showing
the absence of any genuine issue of material fact and that he is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In
determining if the defendant has met this burden, the Court must
consider whether, when assessing the evidence in light most
favorable to the plaintiff, a “fair-minded jury could return a
verdict for the plaintiff... .” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986); Pulliam Inv. Co., Inc. v. Cameo
Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). Nevertheless,
the “mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient” to defeat a motion for
summary judgment. Anderson, 477 U.S. at 252. See also Bar-
wick v. Celotex Corp., 736 F2d 946, 958-59 (4th Cir. 1984). The
plaintiff must identify for the Court some dispute of fact that is
material to the legal issues presented in the case in order to
successfully oppose a motion for summary judgment. “The plain
language of Rule 56(b) mandates the entry of summary judg-
ment, after an adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case
and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. It is against these standards that the
Court shall review defendants’ motion.
lif. Analysis
At common law, limitations against a cause of action
commenced upon occurrence of the wrongful act. However, an
exception was recognized for medical malpractice suits which
5-b
allowed the limitations period to begin when the wrong was
discovered or when, through the exercise of diligent inquiry, it
should have been discovered. Hahn v. Claybrook, 130 Md. 179,
100 A. 83 (1917). This common law rule has been codified by
the Maryland General Assembly. The relevant statutory
provision reads: “An action for damages for an injury arising
out of the rendering of or failure to render professional services
by a health care provider . . . shall be filed within . . . [t]three
years of the date of injury was discovered.” Md. Cts. & Jud.
Proc. Code Ann. § 5-109(a)(2) (Repl. Vol. 1989). There being
an absence of legislative direction regarding what conduct con-
Stitutes “discovery,” a brief overview of judicial treatment of the
rule is warranted.
For the purpose of the discovery rule, actual, not construc-
tive, knowledge of the wrong is required to start the running of
the limitations period. Poffenberger v. Risser, 290 Md. 631, 431
A.2d 677 (1981); Hahn, 130 Md. at 186, 100 A. at 85. Actual
knowledge may be either express or implied. Express
knowledge is established by direct evidence, whereby notice of
the wrong that caused the injury is directly communicated.
Poffenberger, 431 A.2d at 680. See Baltimore v. Whittington,
78 Md. 231, 235-236, 27 A. 984, 985 (1893). Implied notice, in
contrast, is inferred from circumstantial evidence. Such
knowledge is established when the party to be charged becomes
aware of circumstances which, through the exercise of diligent
investigation, would lead him to acquire knowledge of the
wrong that caused the injury. Poffenberger, supra.
Here, the Rowlands contend that the action did not accrue
until March 1983, when they were told by Dr. Ducker that
malpractice may have occurred. According to the rule, however,
knowledge of an actionable claim is not necessary to trigger the
running of the limitations period. Lutheran Hospital v. Levy, 50
Md. App. 227, 240, 482 A.2d 23, 29 (1984). See Jones v. Suger,.
18 Md. App. 99, 105 & n.3, 305 A.2d 219, 223 & n.3 (1973).
6-b
Instead, all that is required is knowledge of the injury and its
cause. In medical malpractice suits, the injury is often dis-
covered long after the negligent conduct was performed but
prior to the time the party knows that a cause of action may lie
against the medical practitioner. As a result, a plaintiff’s statute
of limitations may begin to run before that plaintiff becomes
aware that he has an actionable claim. Nevertheless, § 5-
109(a)(2) demands that actions must be filed within three years
of the time the plaintiff acquires knowledge, either express or
implied, of the nexus between the alleged wrong and the injury.
Hill v. Fitzgerald, 304 Md. 689, 699-700, 501 A.2d 27, 31-31
(1985). Applying these concepts to the case at bar, it is clear
that the Rowlands had acquired sufficient knowledge of Janet’s
injury, as of June 12, 1982, for the limitations period to be
triggered.
Based on their pre-operative discussions with Dr. Patter-
son, the Rowlands had certain basic expectations of the effects
which would result from the back surgery. However, when Janet
awoke from the surgery, she had lost control of her lower body
and experienced severe pain and discomfort. In the weeks
following the surgery, Janet experienced unremitting physical
pain, of which Donald was well aware. Furthermore, in an
attempt to ameliorate the damage, Janet underwent three addi-
tional surgical procedures. As a result, Janet remained in the
hospital four weeks longer than had originally been expected.
In addition to experiencing the harmful effects of Dr.
Patterson’s surgery, both plaintiffs were provided an explana-
tion for their unanticipated difficulties. Dr. Su explained to
Donald that Janet’s worsened condition was the result of damage
to the vena cava, which had been inadvertently lacerated during
Dr. Patterson’s surgery. Dr. Carey confirmed Dr. Su’s findings
to Janet during his consultations with her following the June 11,
1982, surgery. Thus, by mid June at the latest, the Rowlands
knew the following: Janet’s surgery had gone badly; she re-
7-b .
quired three additional procedures to correct the errors of Dr.
Patterson’s initial surgery; and they were both told that an
unusual event, laceration of the vena cava, had caused her
problem.
The basic rationale underlying the discovery rule is that it
is unfair to bar recovery for an injury that a reasonably prudent
person would be unable to discover. Harig v. Johns-Manville
Products, 284 Md. 70, 81-83, 394 A.2d 299, 305-306 (1978).
Therefore, the cause of action accrues only after the party to be
charged has actual knowledge that “something wrong had been
done”. Lutheran, 60 Md. App. at 236, 482 A.2d at 27.
The Rowland’s contend that they did not discover the
injury until Dr. Ducker offered his opinion on March 3, 1983,
that a possible legal claim existed; Dr. Ducker’s opinion, how-
ever, was based entirely on facts already known to the plaintiffs.
It is well established, that an action under the discovery rule does
not accrue at the time the party receives in hand expert advise
that malpractice may have occurred; rather, the clock begins to
run once the party has knowledge of those facts which serve as
the basis for an actionable claim. /d. at 239-240, 482 A.2d at 29.
For the plaintiffs, this occurred when Dr. Su and Dr. Carey
informed Donald and Janet of the underlying cause of the
medical problems.
As a result, the discovery rule dictates that the plaintiffs
were under a duty, as of June 12, 982, to investigate further and
are, therefore, charged as of that date with notice of all facts that
such an investigation would have disclosed, Poffenberger, 290
Md. at 637, 431 A.2d at 681, including Dr. Ducker’s opinion
that malpractice may have taken place. For the forgoing reasons,
the Court concludes that the limitations period expired on June
12, 1985. Since this suit was not filed until July 16, 1985, the
defendants are entitled to summary judgment.
Accordingly, it is this /6th day of July, 1990, by the United
States District Court for the District of Maryland,
8-b
ORDERED:
1. That defendants’ motions for summary judgment are
GRANTED; and
2. That the Clerk of the Court shall mail a copy of this
Memorandum and Order to all counsel of record.
/s/Norman P. Ramsey
Norman P. Ramsey
United States District Judge
APPENDIX C
l-c
HCA NO. 85-376
BEFORE THE
HEALTH CLAIMS ARBITRATION
OFFICE OF MARYLAND
JANET L. ROWLAND and DONALD E. ROWLAND
Claimants
Vs.
DONALD A. PATTERSON, M.D., et al.
Health Care Providers
OPINION AND ORDER
All Defendants in the above captioned matter have moved
for summary judgment in their favor based upon two grounds:
a release of the original tortfeasors by the Claimant bars this
action against subsequent tortfeasors (the Defendants); and, the
claim is barred for failure to file within three years of the date
when the injury was discovered.
The first ground can be disposed of summarily. Based on
two recently filed cases and because there are also genuine
disputes of fact surrounding the execution of the proffered
release, Summary judgment is not appropriate at this state of the
proceedings. Morgan v. Cohen No. 53 in the Court of appeals
of Maryland, filed April 7, 1987, and Hovermill v. Cohen No.
54 in the court of Appeals of Maryland, filed April 7, 1987.
The second ground presents a greater problem. It is con-
ceded that the limitation clock begins to run when the Plaintiff
has an awareness implied from knowledge of circumstances
which ought to put a person of ordinary prudence on inquiry,
thus charging that person with notice of all facts which such an
investigation would, in all probability, have disclosed had it
been properly pursued.
2-c
The Defendant’s memorandum in support of Motion for
Summary Judgment contains a lengthy and impressive list of
circumstances and facts known to the Claimants at the time of
Dr. Carey’s surgery, June 11, 1982, or shortly thereafter. It is
sufficient to merely summarize the Claimants’ knowledge as of
that time. The Claimants expected the operation to ease the pain
of a prior medical problem; they expected Mrs. Rowland to be
discharged routinely from the hospital after surgery; Mrs.
Rowland nearly died from the first operation; something had
gone wrong in the first surgery, specifically, her vena cava had
been cut in two places; she had to undergo two emergency
operations; she was in great pain.
The knowledge of these circumstances as of June 12, 1982,
or shortly thereafter, was sufficient to start the three year period
during which the Claimants were under a duty to investigate
further, and they are, therefore, charged with notice of all the
facts that such an investigation would have disclosed.
The Claimants suggest two reasons why summary judg-
ment should not be granted. They suggest that the panel chair-
man does not have authority to decide this issue under
§3-2A-05(a)1 of the Health Care Malpractice Claim Subtitle:
O’Hara v. Kovens 305 Md. 280, 503 A.2d 133 (1986). I believe
that case requires summary judgment as a “matter of law” in
those instances where there is no dispute of the facts, following
ordinary principles governing summary judgment, and where,
based on these facts, reasonable persons could only find that the
Claimants were on notice more than three years prior to date this
Claim was brought.
The Claimants also suggest that the continuing treatment
rule, as articulated in Waldman v. Rohrbaugh 241 Md. 137, 215
A.2d 825 (1966), tolls the limitation period until the medical
treatment is terminated. The problem is that the rule itself
contains the caveat “...unless the patient sooner knew or
reasonably should have known of the injury or harm, in which
3-c
case the statute would start with actual or constructive
knowledge,” thus bringing the issue back to principal question.
For reasons cited herein, it is therefore this 6th day of May,
1987, hereby ORDERED:
1. The Health Care Providers’ Motion for Summary Judg-
ment, based on the release of the original tortfeasor, is denied.
2. The Health Care Providers’ Motion for Summary Judg-
ment, based on limitation is granted.
3. Judgment is hereby entered in favor of the Health Care
Provider Donald A. Patterson, Robert K. Hobbs, Michael A.
Winslow, Tom J. Altizer, and Robert J. Cirincione.
4. The costs, as assessed by the Director’s Office, shall be
paid one-half by the Claimants and one-half by the Defendant
Health Care Providers.
Lucien T. Wi
Lucien T. Winegar
Panel Chairman
15 North Court Street
Frederick, MD 21701
301/663-1234
APPENDIX D
l-d
NO. 15,733 CIVIL
IN THE
Circuit Court
FOR WASHINGTON COUNTY
JANET L. ROWLAND AND DONALD E. ROWLAND
Plaintiffs
Vs.
DONALD A. PATTERSON, M.D.
TOM J. ALTIZER, M.D.
MICHAEL A. WINSLOW, M.D.
ROBERT K. HOBBS, M.D.
ROBERT J. CIRINCIONE, M.D.
Defendants
MEMORANDUM OPINION
Aggrieved by an adverse ruling before the Health Claims
Arbitration Board, the plaintiffs decided to challenge the
decision of the Arbitrator by filing suit in the United States
District Court for the District of Maryland on June 15, 1987. The
procedural requirements as set forth in the Maryland statutes and
as interpreted by the Maryland Court of Appeals in Oft v.
Kaiser-Georgetown Health Plan, Inc., 309 Md. 641 (1987),
were fully complied with in a timely fashion.
Firstly, they filed a notice of rejection with the Health
Claims Arbitration Board within 30 days, and secondly, they
filed a notice of action to nullify and complaint in the United
States District Court within 30 days. This was a conscious
decision, an election on their part to proceed in the Federal
Court. Had they chosen, they could have initiated their suit
simultaneously in two jurisdictions by also proceeding in a
timely fashion to file a complaint in state court in Washington
2-d
County, Maryland. They chose deliberately to proceed solely in
the Federal Court and deliberately allowed the 30-day time
limitations to expire without filing a complaint against the
defendants in Maryland.
Months later, and after encountering diversity of citizen-
ship problems in the federal proceedings, they belatedly initiated
action in the Circuit for Washington County on August 16, 1988.
In respect to the state court proceedings, this court finds
that there was substantial non-compliance with the statutory
requirements. The compliance with this requirement is a condi-
tion precedent to vesting the state court with jurisdiction.
This court finds that the non-compliance was not simply
an oversight or inadvertent failure to comply with a technical
requirement. Rather, however, I find that the non-compliance
was as a result of their decision to proceed in Federal Court,
exclusively. The belated decision to file in the state court was
made more than a year late and only after the plaintiffs en-
countered federal jurisdictional problems.
Dated: February 3, 1989
Daniel W. Moylan
Associate Judge
APPENDIX E
l-e
No. 87-1721
United States Court of Appeals
Fourth Circuit
JANET L. ROWLAND; Donald E. Rowland
Plaintiffs - Appellants
v.
DONALD A. PATTERSON, M.D.;
Tom J. Altizer, M.D.;
Michael A. Winslow, M.D.
Robert K. Hobbs, M.D.
Robert J. Cirincione, M.D.
Defendants-Appellees
Argued March 10, 1988
Decided July 18, 1988
Rehearing Denied September 6, 1988
Before MURNAGHAN and CHAPMAN, Circuit Judges and
McMILLAN, United States District Judge for the Western
District of North Carolina, sitting by designation.
MURNAGHAN, Circuit Judge:
On July 16, 1985, Janet L. Rowland and Donald Rowland
filed with the Maryland Health Claims Arbitration Office
(HCAO) a malpractice proceeding against five defendants who
are medical doctors. The step was taken in accordance with the
Maryland Health Care Malpractice Claims subtitle of the Courts
and Judicial Proceedings Article of the Annotated Code of
Maryland. Md. Cts. & Jud.Proc.Code Ann §§ 3-2A-01 to -09.
That subtitle establishes as a pre-condition to legal action in
court the institution of a medical malpractice proceeding. Md.
Cts. & Jud.Proc.Code Ann §3-2A-02; Davison v. Sinai Hosp. of
2-e
Baltimore, 462 F.Supp. 778 (D.Md.1978), aff'd, 617 F.2d 361
(4th Cir.1980); see Ott v. Kaiser-Georgetown Community
Health Plan, Inc., 309 Md. 641, 646, 526 A.2d 46, 49 (1987).
Thereafter, following asummary judgment on May 6, 1987
by the HCAO for the defendants on the grounds that limitations
had expired, plaintiffs filed a notice of rejection with the HCAO
on June 12, 1987. Three days later, plaintiffs, alleging diversity
jurisdiction, filed in the United States District Court for the
District of Maryland a civil action to nullify the HCAO decision
in favor of the defendants. !
Judicial review under a standard akin to de novo review of
the HCAO decision was called for. Md. Cts. & Jud.Proc.Code
Ann. § 3-2A-06. Review is not precisely de novo since the
HCAO decision has continuing vitality. The court on prelimi-
nary motion may modify, correct or vacate the award if it was
procured by fraud or misconduct, occasioned by prejudice, or if
the HCAO had exceeded its authority or committed a mistake
of law or fact appearing on the face of the award. Md.Cts. &
Jud.Proc.Code Ann. §§ 3-2A-06(c), 3-223, 3-224. Otherwise,
the award is admissible in any subsequent judicial proceeding
and is presumed correct. Section 3-2A-06(d). Not only does the
HCAO award have continuing vitality, but so do constituent
elements of the proceeding. For example, when Donald
Rowland’s deposition in the HCAO proceeding was taken on
December 15, 1986, it became admissible in the subsequent
judicial proceeding. Section 3-2A-06(e).
On June 15, 1987 when the complaint was filed with the
clerk of the Maryland federal district court, the plaintiffs and the
defendants were diverse.2 However, they were admittedly not
diverse on July 16, 1985 when the HCAO proceeding first was filed.
]
The nullification action which was accompanied by a Complaint was
virtually identical with the medical negligence claim filed initially with HCAO.
“The defendants seek to controvert that fact, but in view of the result
by the district court it never reached the issue. For reasons later appearing
herein we need not and should not reach it either.
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The question of controlling importance, of course, is which
of those two filings: the HCAO filing or the filing of the
complaint in federal court commenced the action for purposes
of determining the existence of diversity jurisdiction. It is well
settled that diversity is judged as of the time of commencement
of suit. Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 6 L.Ed. 154
(1824); Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d
1205 (1957); Mullins v. Beatrice Pocahontas Co., 489 F.2d 260
(4th Cir.1974). We must decide which filing commenced the
suit. The district court ruled that the HCAO filing commenced
it, found that on the date of commencement the parties were not
diverse, and therefore dismissed the case for want of subject
matter jurisdiction.
The district judge proceeded from the view that an action
must commence for all purposes on a single date. He first found
that the HCAO filing commenced the action for limitations
purposes. He then stated that, because of a current disinclination
to expand diversity jurisdiction, he should not hold that there
was commencement of the action on two different occasions,
once when the HCAO action was initiated on July 16, 1985, for
limitation purposes, and again when the federal district court
suit was filed on June 15, 1987 for purposes of determination of
diversity.
There may be some doubts as to the correctness of the
district court’s logic. An action can commence on more than one
date because of the holding in Erie Railroad v. Tompkins, 304
U.S. 64, 58 S.Ct.817, 82 L.ED. 1188 (1938). Federal courts
Sitting in diversity generally apply state statutes of limitations.
Ragan v. Merchants Transfer & Warehouse Co.n, 337 U.S. 530
69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Thus, a federal action may
commence for limitations purposes upon whatever event the
state has defined for that purpose, e.g., the date of service of the
complaint. Yet for all other purposes the federal action will
commence under the applicable Federal Rule of Civil Proce-
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dure, Rule 3, that states that an action commences when the
complaint is filed. However much it linguistically offends one’s
first impression, in legal principle, there could indeed be two
different times of commencement.
However, even if the reasoning employed by the district
court should prove to be slightly faulty, he was on the right track
and the result remains the same. We agree with the conclusion
that the present action commenced for purposes of determining
diversity when the HCAO proceeding was filed. Federal courts
apply federal rules of procedure, both those promulgated in the
Federal Rules of Civil Procedure as well as wholly judge made
procedural rules, unless the Erie doctrine commands otherwise.
Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8
(1965); Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev.
693(1974). The present case requires us to decide which of two
filings commenced an action in federal court for purposes of
determining the existence of diversity jurisdiction. That is a
purely federal procedural question, since no state substantive
right is involved. Hanna, 380 U.S. at 471, 85 S.Ct. at 1143; 28
U.S.C. § 2072.
Looking at the situation solely from a federal point of view,
what occurred on July 16, 1985, the bringing of the HCAO
action, happened to amount for federal purposes to a commen-
cement of the cause of action.> Two reasons lead us to that
conclusion. One, the HCAO proceeding continued to have effect
when and after the case took on a completely judicial aspect.
> The dissent suggests that Cannon v. Kroger, 832 F.2d 303 (4th Cir.
1987), reh’g denied, 837 F.2d 660 (4th Cir.1988), supports its result. To the
extent that Cannon is relevant, it simply supports a proposition to which the
majority and dissent agree, viz, that a federal procedural question is involved
in the present case. The dissent states “[Cannon] lends support to the
proposition that federal courts should apply the Federal Rules unless there is
a compelling reason not to do so.” We agree and have applied federal
procedura! law to the facts of the present case and have decided federally
when the case “commenced” for purposes of determining diversity of the
S-e
Two, submission to the HCAO is a condition precedent to filing
suit in federal court as well as to state court filing. The HCAO
filing then is the first filing necessary to institute a federal civil
action. We hold that the HCAO filing commenced the suit for
purposes of determining diversity jurisdiction. At the time of filing
the HCAO proceeding on July 16, 1985, there was no diversity.
Consequently, dismissal was, therefore, appropriate.
AFFIRMED.
McMILLAN, District Judge, dissenting:
The majority would hold that, for purposes of deciding
diversity of citizenship of the parties, this action was “com-
menced” by the filing of a claim with a Maryland state ad-
ministrative agency, rather than by “filing a complaint with the
[federal] court,” as required by Rule 3 of the Federal Rules of
Civil Procedure.
I respectfully dissent.
This suit is a medica] malpractice action by plaintiffs Janet
Rowland and Donald Rowland against five medical doctors.
Under Maryland statue, the Rowlands were required to file a
claim with the Maryland Health Care Claims Arbitration Office
as a precondition to filing a suit in either state or federal court.
Md.Cts. & Jud.Proc.Code Ann. § 3-2A-02; Davison v. Sinai
Hospital of Baltimore, 462 F.Supp. 778, 780 (D.Md.1978, aff'd,
617 F.2d 361 (4th Cir. 1980). The Health Care Claims Arbitra-
tion Office (“HCAO”) is an administrative agency of the State
of Maryland. It is not a state or federal court.
parties. That we measure diversity for that purpose by turning to an event
occurring outside of a federal court makes ours no less a decision of federal
procedural law for, in the same mannner federal procedural law requires, in
cases removed from state court, that diversity exist at the time of commen-
cement in State court as well as when the petition for removal is filed (z.e., at
a time when commencement could only be by pertinent state rules). See 14A
C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3723,
311-14 (1985).
6-e
The Rowlands filed their claim with the Maryland HCAO
on July 16, 1985. At the time they filed their claim, both the
Rowlands and the defendants were residents of Maryland.
On May 6, 1987, the HCAO granted defendants’ motion
for summary judgment on the ground that the claim was untime-
ly under the three-year statue of limitations applicable to medi-
cal malpractice claims against health care providers in
Maryland. Md.Cts. & Jud.Proc. Code Ann. § 5-109.
On June 15, 1987, plaintiffs initiated this suit by filing their
complaint in the United States District Court for the District of
Maryland. Plaintiffs allege that they were residents of West
Virginia at the time they filed their complaint in federal court.
Although defendants dispute the fact of plaintiffs’ West Virginia
residence on June 15, 1987, the court below assumed it. We
likewise assume that, for the purpose of deciding this appeal,
the parties were of diverse citizenship on June 15, 1987.
The district court dismissed the suit on the basis that the
suit commenced for diversity purposes on July 16, 1985, the date
the claim was filed with the Maryland state agency (HCAO),
rather than on June 15, 1987, the date plaintiffs filed their
complaint in United States District Court. The district judge
observed that the filing of the HCAO claim tolled the state statue
of limitations. He dismissed the case because he concluded that
there should not be two dates for commencement of suit, and
because he was concerned not to “expand” diversity jurisdiction.
As the majority observes, this reasoning is not supported
by the law. Federal courts sitting in diversity jurisdiction are
bound to apply state law in determining what event tolls a state
statue of limitations, notwithstanding the language of
Fed.R.Civ.Proc.Rule 3. (“An action is commenced by filing a
complaint with the court.”) Walker v. Armco Steel Corporation,
446 U.S. 740, 751-752, 100 S.Ct. 1978, 1985-1986, 64 L.Ed.2d
659 (1980); See, also, Ragan v. Merchants Transfer &
Warehouse Co., 337 U.S. 530, 69 S.Ct.1233, 93 L.Ed. 1520
7-e
(1949). Where a state recognizes an event different from the
filing of the complaint in the court as commencing the suit for
the purpose of tolling a state statue of limitation, Rule 3 still
governs the definition of “commencement of suit” for other
purposes, such as time deadlines for responsive pleadings.
Walker, 446 U.S. at 751-752, 100 S.Ct. at 1985-1986.
The majority also recognizes that the question when an
action commences for the purpose of determining diversity is a
matter of federal law. See, Ziady v. Curley, 396 F.2d 873, 874
(4th Cir.1968); See, also, Kantor v. Wellesley Galleries, Ltd.,
704 F.2d 1088, 1090 (9th Cir.1983) (following Ziady). However,
the majority reaches a result that is unsupported by federal law.
The circuit courts that have addressed the issue unani-
mously hold that, except in cases removed from state court,
diversity of citizenship is determined with reference to the date
on which a complaint is filed in federal court. Topp v. CompAir
Inc. 814 F.2d 830,832, n. 1(1st Cir.1987) (“Citizenship, for
purposes of establishing diversity jurisdiction, is determined as
of the date of initiation of suit...[citations omitted]... Here, since
suit was filed on August 30, 1985, the citizenship of CompAir
Inc. will be determined as of that date”); Lugo-Vina v. Pueblo
International, Inc. 574 F.2d 41, 42, n. 1 (1st Cir. 1978) (“Diver-
sity] [j]urisdiction is to be determined as of the time of the filing
of the complaint.” ) Wigand v. Flo-Tek, Inc. 609 F.2d 1028, 1032
(2nd Cir.1979) (“Diversity) jurisdiction is to be determined as
of the commencement of suit. ... When the complaint in this case
was filed on September 19, 1972, the offices and operations of
Flo-Tek had been located in Hopewell Junction, N.Y. for ap-
proximately a year [footnote omitted].”); Nationwide Mutual
Fire Insurance Co. v. T & D Cottage Auto Parts and Service
Inc. 705 F2d 685, 688 (3rd Cir.1983) (“,,, diversity jurisdiction
is generally determined by the facts that existed at the time the
complaint was filed.”); Mullins v. Beatrice Pocahontas Co., 489
F.2d 260, 261 (4th Cir.1974) (“Plaintiff’s complaint was filed
8-e
on February 14, 1968, and that, of course, is the crucial date for
determination of defendant’s citizenship.”); Seafoam, Inc. v.
Barrier Systems, Inc. 830 F.2d 62, 66 (Sth Cir. 1987) (“It is well
established law that the jurisdiction of a federal court sitting in
diversity is determined as of the time of the filing of the
complaint.”); Jason’s Foods, Inc. v. Peter Eckrich & Sons, Inc.
768 F.2d 189, 190 (7th Cir. 1985) (“...we direct the district judge
to make and certify to us, within thirty days, his finding on the
defendant’s principal place of business is the relevant date for
purposes of establishing federal [diversity] jurisdiction.”); Co-
Efficient Energy Systems v. CSL Industries, Inc. 812 F.2d 556,
557 (9th Cir.1987) (“Diversity of citizenship is determined as
of the time of the filing of the complaint.”) Mann v. City of
Tucson, Department of Police, 782 F.2d 790, 794 (9th Cir. 1986)
(“Existence of diversity jurisdiction is determined by the citizen-
ship of the parties as the time of the filing of the complaints, not
at the time the cause of action arose or after the action is
commenced.”). Scoggins v. Pollock, 727 F.2d 1025, 1028 (11th
Cir. 1984) (Court determined diversity of citizenship by deter-
mining the facts as of the date the plaintiff filed the suite);
Prakash v. American University, 727 F.2d 1174, 1179, n. 28
(D.C.Cir.1984) (“Diversity of citizenship must exist when the
action is brought-here 1978-and not when the cause of action
arose”); Beghin-Say International v. Ole-Bendt Rasmussen, 733
F.2d 1568, 1572 (Fed.Cir.1984) (“That determination [whether
the parties had diversity of citizenship] must be made as of the
filing date of a complaint, or of an amended complaint, and
cannot be changed by action of a party thereafter.”’).
Those courts use the date the complaint is filed as the date
of commencement of suit because they are bound to do so by
Federal Rules of Civil Procedure Rule 3. Rule 3 states: “A civil
action is commenced by filing a-complaint with the court.”
(Emphasis added.) The Advisory Committee’s note to Rule 3
states,“...2. This rule governs the commencement of all actions,...”
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Rule 3 has the force and effect of a federal statue. Courts
have adopted a narrowing construction of the Federal Rules of
Civil Procedure only where that construction serves the goals of
the Erie doctrine, (preserving the integrity of state substantive
law in diversity cases), or where an application of a rule would
exceed the limits imposed by the Constitution or the Rules
Enabling Act, 28 U.S.C. § 2072. See, Walker,446 U.S. at 751-
752, 100 S.Ct. at 1985-1986. The application of the federal rules
by a court sitting in diversity jurisdiction is not a matter of discretion.
When a situation is covered by one of the Federal
Rules, the questions facing the court is a far cry from
the typical, relatively unguided Erie choice: the court
has been instructed to apply the Federal Rule, and can
refuse to do so only if the Advisory Committee, this
Court, and congress erred in their prima facie judg-
ment that the Rule in question transgresses neither the
terms of the Enabling Act nor constitutional restric-
tions [footnote omitted].”
Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14
L.Ed. 2d 8 (1965) (Emphasis added).
Here, as noted above, there is no issue of conflict between
federal and state law because the question when diversity is
determined is a matter of federal law. Nor is there any contention
that the application of Rule 3 to determine diversity of citizen-
ship would violate the Constitution or the Rules Enabling Act.
The majority holds that the HCAO filing was the date of
commencement of suit because “the HCAO proceeding con-
tinued to have effect when and after the case took on a complete-
ly judicial aspect,” and “submission to the HCAO is a condition
precedent to filing suit in federal court as well as state court.”
These observations may be accurate, but they provide no basis
for disregarding the plain language of Rule 3.
10-e
The majority’s holding is tinged with a further irony. The
court could not exercise its subject matter jurisdiction at the time
the HCAO claim was filed because exhaustion of the HCAO
administrative process is a precondition of jurisdiction over a
medical malpractice claim in Maryland. Davison 462 F.Supp.
at 780-781. Yet, under the majority’s view, this date is the
appropriate time to which a court, subsequent to exhaustion of
administrative remedies, looks back in order to determine if the
parties are diverse. Thus, the majority would have a federal court
determine its jurisdiction with reference to a time at which it
could not have sustained its jurisdiction.
Because | respectfully believe the majority's reasoning and
result to be unsupported by law, and because I believe federal
courts should apply the language of the Federal Rules of Civil
Procedure, absent a compelling reason for a narrowing construc-
tion I dissent. !
Judge Hall has called attention to a prior decision by this court, Cannon
v. Kroger Co., 832 F.2d 303 (4th Cir.1987).
In Cannon, plaintiff asserted that her suit under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, was commenced for the
purpose of tolling the six-month statute of limications when, in compliance
with North Carolina Rules of Civil Procedure Rule 3, a North Carolina court
issued a Summons in response to plaintiff’s application to file a state court
complaint.
A divided panel of the Fourth Circuit rejected that assertion. The majority
held that the United States Supreme Court’s decision in West v. Conrail et
al., 481 U.S. 35, 107 S.t. 1538, 95 L.Ed. 2d 32 (1987), mandated the
application of the Federa/ Rules to determine when the limitation period
applicable to claims under § 301 was tolled. The majority also held that the
North Carolina state court summons was not the equivalent of a Federal
complaint under Fed. R. Civ. P. Rule 8(a)(2), and that because a complaint
within the meaning of Rule 8(a)(2) was not filed within the limitation period,
the action was not commenced within that period under Fed. R. Civ. P. Rule 3.
Although the facts and reasoning of Cannon are not identical, the decision
lends support to the proposition that federal courts should apply the Federal
Rules unless there is a compelling reason not to do so.
APPENDIX F
1-f
No. 87-1721
United States Court of Appeals,
Fourth Circuit
Janet L. ROWLAND; Donald E. ROWLAND,
Plaintiffs-A ppellants,
Va
Donald A. PATTERSON, M.D.;
Tom J. Altizer, M.D.;
Michael A. Winslow, M.D.;
Robert K. Hobbs, M.D.;
Robert J. Cirincione, M.D.;
Defendants-A ppellees.
Argued Feb. 7, 1989
Decided Aug. 10, 1989
Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL,
PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN,
WILKINSON, AND WILKINS, Circuit Judges, en banc.
PHILLIPS, Circuit Judge:
Maryland law requires medical malpractice claimants to
exhaust an arbitration remedy provided by the state as a precon-
dition to bringing any civil action on the claim in state or federal
court. The question on this appeal is whether when a rejected
arbitration claim is followed by a federal action invoking diver-
sity jurisdiction, diversity is determined by the parties’ citizen-
ship at the time the state arbitration claim was filed or at the time
the federal diversity action was later commenced. We hold that
2-f
citizenship at the time the federal action was commenced by
filing a complaint controls, and on that basis vacate the district
court’s contrary ruling and its resulting dismissal of this action
for lack of diversity jurisdiction.
I
This action is one for medical malpractice brought by
plaintiffs Janet Rowland and Donald Rowland against five
medical doctors, the appellees on this appeal. Pursuant to
Maryland law, the Rowlands were required to file a claim with
the Maryland Health Care Claims Arbitration Office (HCAO)
as a precondition to bringing a legal action for malpractice in
either state or federal court. Md.Cts. & Jud.Proc.Code Ann. §
3-2A-02. HCAO is an administrative agency of the State of
Maryland, not a court of law.
The Rowlands filed their claim with the Maryland HCAO
on July 16, 1985. At the time they filed this claim, both the
Rowlands and the defendants were citizens of Maryland
On May 6, 1987, the HCAO granted defendants’ motion
for summary judgment on the ground that the claim was untime-
ly under the three-year statue of limitations applicable to medi-
cal malpractice claims against health care providers in
Maryland. Md.Cts&Jud.Proc.Code Ann § 5-109.
On June 15, 1987, plaintiffs commenced this action by
filing their complaint in the United States District Court for the
District of Maryland, alleging that they were residents of West
Virginia at the time they filed their complaint in federal court.
Defendants disputed the plaintiffs’ allegation that on June 15,
1987, they were citizens of West Virginia and argued alterna-
tively that 'n any event the time for determining diversity was
July 16, 1985, the date the claim was filed with HCAO.
The district court did not address the disputed issue of the
plaintiffs’ citizenship at the time their federal complaint was
filed, but dismissed the action on the ground that for diversity
3-f
purposes the action was commenced on July 16, 1985, when the
claim was filed with the HCAO, at which time the parties
concededly were not of diverse citizenship. The district court
observed that under the Maryland statute the filing of the HCAO
claim tolled the state statue of limitations. Concluding that there
should not be two dates for commencement of suit, and because
of a concern not to “expand” diversity jurisdiction, the court
dismissed the action.
This appeal followed.
II
From the beginning of the diversity jurisdiction, the rule in
actions commenced by plaintiffs in federal court has been that
the citizenship of the parties at the time of commencement of
the action determines whether the requisite diversity exists. See
Mollen v. Torrance, 22 U.S. (9 Wheat.) 537, 6 L.Ed. 154
(1824):; Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 7 L.Ed. 518
(1829). The rule is not derived from nor dependent upon inter-
pretation of either the constitutional source of diversity jurisdic-
tion in Art. III, § 2, or its statutory grant in 28 U.S.C. § 1331.
Neither text expressly or by implication addresses this intersti-
tial question. The rule is therefore purely a judicial one, an-
nounced and reiterated in the earliest Supreme Court cases as an
a priori principle, apparently grounded simply in then cus-
tomary judicial ways of looking at the attachment of jurisdiction
and in the obvious necessity to have some clear rule on the
matter. See Mollern, 22 U.S. at 539 (Marshal, C.J.) (“It is quite
clear, that the jurisdiction of the court depends on the state of
things at the time of the action brought....”); Conolly, 27 U.S. at
565 (Marshall, C.J.) (“[A] jurisdiction depending on the condi-
tion of the party is governed by that condition as it was at the
commencement of the suite.”). This is not the only rule that
might validly (so far as any constitutional or statutory con-
straints are concerned) have been adopted to control on the
point, but its reliability as a convenient bright-line mechanical
4-f
rule that is clearly compatible with general notions of the
attachment of jurisdiction has assured its uninterrupted con-
tinuation from the beginning. See generally 13B C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure & 3608
(1984) (hereinafter Wright, Fed.Prac.).
While over time there have been various ways in which a
federal action could be “commenced,”! since 1938 civil actions
are, per the civil rules, commenced by “filing a complaint with
the court.” Fed.R.Civ.P. 3. since the official Rule’s adoption
therefore, this public act of filing has fixed the time of commen-
cement of federal civil actions, hence the convenient and reliable
reference point for determining the existence of diversity under
the broader, antecedent “time of commencement” rule.
We make these obvious points simply to indicate that the
basic rule is one of federal interstitial common law, judicially
created, grounded in policy and necessity rather than in any
constitutional or statutory commands or constraints. And to
make the further point that a routine application of the basic rule
as now made act-specific by Rule 3 would require that diversity
be determined as of the time the federal complaint in this action
was filed rather than, as the district court held, the time that the
earlier State arbitration claim was filed.
Il
The best way to address the jurisdictional issue here is by
considering the arguments made by appellees for not applying
the basic rule as now made act-specific by Rule 3. There are
essentially two arguments as we understand the appellees’ posi-
tion. The first is that application of the federal time of commen-
cement rule here “would violate well established principles of
1
Until adoption of the federal rules in 1938, state law, per the Conform-
ity Act, ch. 255, § 5, 17 Stat. 197 (1872), determined the specific acts, hence
times, of commencement of federal actions at law. See 1] Moore’s Federal
Practice para. 3.03 (1989). The times were thus various, and specific applica-
tions of the time of commencement rule, comparably various.
5-f
Maryland’s substantive law,” hence, presumably, the principle
of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
1188 (1938). Appellees’ Brief at 6.2 The second, an alternative
argument is that even if-a federal rule fixing the time for
determining diversity is applicable, the appropriate federal rule
is that applied in removal cases, which looks to the time of
commencement of any prior “action before a state tribunal.”
Appellees’ Brief at 15.
We take these in order and also consider a third argument
that may be implicit in appellees’ position.
A
There is no Erie problem here. It is true that Maryland’s
statutory requirement of arbitration as a precondition to legal
action has substantive aspects which, under Erie, must be
honored by federal courts. Most critically, the precondition itself
must be enforced by those courts. We have so held. Davison v.
Sinai Hosp. of Baltimore, Inc., 462 F.supp. 778 (D.Md.1978);
aff'd, 617 F.2d 361 (4th Cir. 1980) (diversity action properly
dismissed for failure to comply with precondition). Further-
more, the statutory provision that filing the arbitration claim
tolls the applicable Maryland statute of limitations must be
honored by federal courts under the settled principle that such
state tolling provisions are effectively substantive for Erie pur-
poses. Walker v. Armco Steel Corp., 446 U.S. 740, 750-51, 100
S.Ct. 1978, 1985, 64 L.Ed.2d 656 (1980).
But that exhausts-at least for purposes of this case and the
issues presented on this appeal-any Frie-protected elements of
the state statute. The state law does not purport to fix the time
for determining federal diversity jurisdiction-even assuming
that it might constitutionally do so, a matter not before us. There
is in Consequence simply no question here of displacing any state
) . . .
“ The appellees do not invoke Erie by name, but their argument based
upon the primacy of state substantive principles could only rest upon Erie’s
constituuonal constraints.
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rule of decision (of whatever nature) with the federal rule, hence
there is no impediment under Erie to applying the federal rule.
Cf. Walker, 446 U.S. at 751, 100 S.Ct. at 1985 (“Rule 3 governs
the date from which various timing requirements of the Federal
Rules begin to run, but does not affect state statutes of limita-
tions.”’).
B
The alternative argument, that if federal law applies, it
should be the federal rule for determining diversity in removed
cases, is equally unavailing.
The removal rule is different, and in a way which, if
applicable, would support the appellees’ position. For it requires
that to support diversity jurisdiction in removed cases, diversity
must have existed both at the time the action was originally
commenced in state court and at the time of filing the petition
for removal. See 14A Wright, Fed. Prac., § 3723, at 311-314 (1985).
The short and sufficient answer to this argument is twofold.
First, technically this is not a removed case, originally com-
menced in a state court, but a federal case which originated in
the federal system with the filing of a federal complaint. It is
therefore one to which the federal time of commencement rule
literally applies. Second, and more important, it does not have
the features that gave rise to the different federal rule for
removed cases. That rule apparently has been thought necessary
to prevent nondiverse defendants in a state-filed action from
acquiring a new domicile, removing on the basis of diversity,
and thereby depriving plaintiffs of their forum of choice. See id.
at 313-14. Here the parties who allegedly have brought about
diversity are not defendants but the plaintiffs, so that a successful
invocation of federal jurisdiction here will not have involuntari-
ly deprived any party of any original rightful choice of forum.
It is true that plaintiffs’ conduct may have allowed them to
“manufacture” a basis for jurisdiction that did not exist from the
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accrual of their claim. But this is simply an accepted and
necessary consequence of the basic right of plaintiffs so to
“manufacture” a bona fide diversity jurisdiction. See generally
13B Wright, Fed.Prac. § 3608, at 450-51.
Neither the form nor the underlying rationale for the federal
removal rule requires its application here.
C
In the end, the only possible argument for not applying here
the federal time of commencement rule is one of policy. Though,
as indicated, appellees seemingly have confined their position
to contending that Erie considerations forbid application of the
rule, or that the removal rule analogy somehow compels it, we
think it appropriate to address this last possibility as well. We
do so for two reasons: first, it may be implicit in appellees’
formal arguments which, as indicated, were not altogether clear
as to their conceptual bases; second, it was the basis for the
vacated panel majority opinion in this case. 852 F.2d 108,
110-11 (4th Cir.1988).
Under this theory, cases of this type presumably would be
treated as special cases requiring special treatment. Though not
controlled either by state substantive rules or by the federal
removal rule, neither should they be controlled by Rule 3’s
fixing of the “time of commencement” as the time of filing a
federal complaint. Presumably, the special nature of such cases
would be that state law has imposed some substantively enfor-
ceable precondition to maintaining a legal action upon a par-
ticular claim. In such cases, it could be contended, the federal
rule for determining diversity should, as a matter of policy, be
by reference to the act commencing compliance with the precon-
dition rather than the act of filing a later federal complaint.
Assuming that such a policy choice were possible for us in
the face of Rule 3-a matter of obvious doubtfulness that we need
not decide-we would not make that choice generally, and
8-f
specifically decline to make it in this case. It would not be a good
policy for general application in “precondition” cases. Certainly
it would not be as good a policy as continuing to adhere to the
basic rule in such cases, for two reasons.
First, the basic rule insures greater certitude in making the
jurisdictional determination at issue. It provides a uniform ref-
erence point in the form.of a readily identifiable act of public
record, uniformly recorded throughout the federal system. By
contrast, reference to the many acts that might be deemed to
“commence” compliance with the variety of present and future
State preconditions to suit would be fraught with obvious uncer-
tainties and administrative difficulties.
’ Though state prelitigation procedures are not, of course, confined to
medical malpractice claims, the state medical malpractice procedures
presently in place provide an apt illustration of the difficulties and uncertain-
ties that the proposed rule would produce. There are presently in effect a
number of state procedures generally comparable in the critical respect to
Maryland’s. While they vary greatly in detail, all require acts, some multiple
acts, of one kind or another that could be contended to be the “commence-
ment” of the preliminary proceeding, hence, under the theory under discus-
sion, the “commencement” of any ensuing legal action. See, e.g.,
Fla.Stat.Ann §§ 768.041 et seg. (1986) (claimant required by § 768.57
“[p]rior to filing a claim...[to] serve upon each prospective defendant...a
notice of intent to initiate litigation....”). Hawaii Rev.Stats.Ann. §§ 671-11
et seq. (1988) (claimant required by § 671-12 to “submit the claim to the
medical claim review panel before a suit based on the claim may be com-
menced in any court of this State”): Idaho Code Ann. §§ 6-1001 et seq. (1979)
(claimant required by § 6-1007 to serve “a true copy of the claim” at the
“commencement” of compulsory proceedings for prelitigation considera-
tion); La.Rev.State.Ann. § 40:1299.47 et seq. (Supp.1989) (per §
1299.47(B)(1)(a)(i), “No action...may be commenced in any court before the
claimant’s proposed complaint has been presented to a medical review
panel...”); Mont.Code Ann. § 27-6-101 et seq. (1987) (per § 27-6-301),
“Claimants shall submit a case for consideration of the [medical legal panel]
prior to filing a complaint in any ...court...by addressing an application...to
the director of the panel.””); N.H.Rev.Stat.Ann §§ 519-A:1 et seq. (1974) (per
§ 519-A:2, claims may be voluntarily submitted to hearing panel “prior to
institution of any litigation [by] fil{ling] initially with the clerk of court...;
9-f
Second, there is nothing to choose between the two rules
in terms of the relative fairness of their applications over time.
The disadvantage presumably thought to result to the defendants
in this case from application of the basic rule is that it may permit
plaintiffs to “manufacture” a basis for federal jurisdiction that
would not exist were defendants’ proposed rule adopted. The
basic rule obviously may have that effect in this case, but the
defendants proposed rule would not protect future defendants
from the same result. The very occasional plaintiff minded to
“manufacture” diversity jurisdiction by going to the trouble of
changing domicile would be as able to do so under defendants’
proposed rule as under the basic rule.4
New Mex.Stat.Ann §§ 41-5-1 et seq. (1998) (per § 41-5-15, "No malpractice
action may be filed in any court...before application is made to the medical
review commission....”). Pa.Code T. 37 §§ 171.1 et seq. (1989) (per § 171.23,
An action may be commenced [before an arbitration panel] by the filing of
[a] fee...and a notice complaint or complaint with the Administrator...in
person or by certified mail...”); 9 Utah Code Ann. §§ 78-14-1 et seg. 1987)
(per § 78-14-12) prelitigation consideration of ...claims...condition precedent
to commencing litigation”; “party initiating ...shall file a request...with [state
agency] within 60 days after the filing of a statutory notice of intent to
commence action...”); Va.Code Ann. §§ 8.01-581.2, claimant must “notify”
putative defendant of claim by mail “prior to commencing” an action,
where-upon either claimant or potential defendant may then “request” medi-
cal panel review by mailing request to Chief Justice); Wis.Stat.Ann. §§
655.42 et seq. (Supp.1988) (per § 655.44, request for mediation a precondi-
tion to court action; “shall be delivered in person or sent by registered mail
to the director”); Wyo.Stat. §§ 9-2-1501 et seq. (1987) (per § 9-2-1506,
review by medical review panel precondition to legal action; instituted by
“application” to panel director).
These statutes sufficiently illustrate the difficulty and uncertainty that
would result from rejection of the nationally uniform rule based on Rule 3 in
order to accommodate this sort of state precondition to legal action.
No rule except one that fixed diversity as of the time at the latest that
a cause of action accrued could protect putative defendants against this
inevitable consequence of the basic right of a plaintiff originally to choose
both the forum and the timing of an action. unworkability of any such rule is
obvious and is not suggested here. See 13B Wright, Fed. Prac. § 3608, at 452.
10-f
In terms of their essential fairness in this respect, the two
rules are therefore a standoff. Under the circumstances, stability
and certainty of application dictate adhering to the well-settled,
known rule, and so we choose, assuming that we have any choice
in the face of Rule 3.
IV
For these reasons we hold that the district court erred in
dismissing the action because the parties were not of diverse
citizenship at the time the state arbitration claim was filed. The
appropriate rule for application here is that the existence of
diversity should be determined by reference to the time the
federal complaint was filed. Accordingly, we vacate and remand
the action for further proceedings consistent with this opinion.°
SO ORDERED.
. By this holding we do not of course purport to decide the jurisdictional
issue raised by defendants’ alternative objection that plaintiffs were not of
diverse citizenship at the time the federal complaint was filed. That issue
presumably remains for resolution by the district court under the proper time
of commencement rule.
APPENDIX G
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CIVIL ACTION NO. R-87-1560
IN THE
United States District Court
FOR THE DISTRICT OF MARYLAND
JANET L. ROWLAND AND DONALD E. ROWLAND
Plaintiffs.
‘.
DONALD A. PATTERSON, M.D., ET AL.
Defendants
MEMORANDUM AND ORDER
Before the Court is defendants Patterson’s, Altizer’s,
Winslow’s, and Hobbs’ motion to dismiss. The motion has been
fully briefed and responded to and the Court now rules without
need for a hearing, pursuant to Local Rule 6(G) (D. Md. 1987).
Defendants allege that his Court lacks subject matter juris-
diction because at the commencement of this action diversity
did not exist between the plaintiffs and the defendants, and that
the subsequent move of the plaintiffs to West Virginia cannot
establish diversity. The Court agrees and will grant defendants’
motion to dismiss.
Plaintiffs contend that this action commenced with the
filing of the complaint with this Court on June 15, 1987.
Defendants, on the other hand , claim that this action was
commenced by the filing of the suit with the Health Claims
Arbitration Office (HCAO) on July 16, 1985. At that time, both
plaintiffs and defendants were residents of the State of
Maryland, and no diversity existed.
2-g
It is well established that the existence of diversity is
determined at the commencement of the action. See Mollan v.
Torrance, 22 U.S. (9 Wheat) 154 (1824). Plaintiffs argue that
the action before the HCAO was a separate and distinct action
from this filing, and that, for purposes of diversity, commence-
ment began on June 15, 1987.
Plaintiffs have cited several cases dealing with diversity,
but none establish their contention that this action did not
commence with the HCAO filing. Furthermore, plaintiffs con-
tend that, for purposes of tolling the statute of limitations, this
Suit was commenced on July 16, 1985, with the filing of the
HCAO suit. Plaintiffs have espoused a novel but unpersuasive
argument to explain this disparity. It is illogical and un-
reasonable for an action to “commence” on two separate dates.
When, as here, the legislature has provided for an ad-
ministrative remedy which tolls the statute of limitations, this
Court finds that commencement of the administrative remedy
also serves to institute proceedings for purposes of determining
diversity jurisdiction.
Because no diversity existed when this suit was com-
menced on July 16, 1985, this Court lacks subject matter juris-
diction over the case. It is therefore unnecessary to address the
issue of the plaintiffs’ present citizenship.
Historically, diversity jurisdiction was created to provide
a neutral forum for fear that prejudice existed in state courts, but
this argument loses much of its force in today’s society. See
Wasson v. Northrup World Wide Aircraft Serv., Inc., 443 F.
Supp. 400, 401, (D.C. Tex. 1978). “It seems highly unlikely that
this type of prejudice exists in much quantity today.” Asher v.
Patific Power & Light Co., 249 F. Supp. 671, 674 (D.C. Cal.
1965). Given the disfavor in which diversity is held, accepting
plaintiffs’ argument would create an unwarranted expansion of
diversity jurisdiction. The proper forum for this case is in the
State Court system.
3-g
It appears from the pleadings that defendant Robert J.
Cirincione, M.D., did not join in the motion to dismiss. Because
the Court finds it lacks subject matter jurisdiction, there is no
good reason to keep the case open as to him. Therefore, the
motion to dismiss will be granted for the case as a whole and
not just the named movants.
Accordingly, for the reasons stated herein, it is this 5th day
of October, 1987, by the United States District Court for the
District of Maryland,
ORDERED:
1. That defendants’ motion to dismiss is GRANTED
WITHOUT PREJUDICE to plaintiffs’ right to refile in state
court; and,
2. That the Clerk of the Court shall mail copies of the
Memorandum and Order to all counsel of record.
/s/ Norman P, Ramsey
Norman P. Ramsey
United States District Judge
APPENDIX H
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No. 90-1074
United States Court Of Appeals
FOR THE FOURTH CIRCUIT
FILED September 9, 1991
JANET L. ROWLAND;
DONALD E. ROWLAND
Plaintiffs - Appellants
Vv.
DONALD A. PATTERSON, M.D.;
TOM J. ALTIZER, M.D.;
MICHAEL A. WINSLOW, M.D.;
ROBERT K. HOBBS, M.D.;
ROBERT J. CIRINCIONE,M.D.
Defendants - Appellees
On Petition for Rehearing with
Suggestion for Rehearing In Banc
Appellants’ filed a petition for rehearing with suggestion
for rehearing in banc. No member of the Court requested a poll
on the suggestion for rehearing in banc, and the original judicial
panel voted to deny the petition for rehearing.
The Court denies the petition for rehearing with suggestion
for rehearing in banc.
Entered at the direction of Judge Phillips, with the concur-
rence of Judge Murnaghan and Judge Britt.
For the Court,
Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.