Kenneth E. Bullington v. M.C. Precise, 698 F. App'x 565

Bullington, a Georgia resident, received radiation to his jaws for cancer treatment in 2009 and was tooth-extracted by Dixieland dentists (including Dr. Jon Strength) on August 11, 2010. He later developed osteoradionecrosis and underwent jaw surgery in 2014.
Georgia law bars medical-malpractice actions more than five years after the negligent act (statute of repose). The five-year repose for the August 11, 2010 extraction expired on August 11, 2015.
On August 6, 2015 the parties executed a tolling agreement stating the parties would toll "any limitations period (i.e. statute of limitations or statute of repose)" from August 6, 2015 through September 23, 2015.
Bullington filed suit on September 23, 2015 (the last day of the agreed tolling period). Defendants removed to federal court and moved to dismiss, arguing Georgia’s statute of repose cannot be tolled and thus Bullington’s claims based on the 2010 extraction were time-barred.
The district court denied dismissal, finding the defendants were equitably estopped from asserting the statute-of-repose defense because they agreed to the tolling language and Bullington reasonably relied on that promise in delaying suit.
The Eleventh Circuit affirmed, holding the defendants’ express promise to suspend the repose defense supported equitable estoppel so they could not now claim the statute of repose.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the defendants may be estopped from asserting Georgia's five-year medical-malpractice statute of repose	Tolling agreement expressly suspended any statute-of-repose defense; Bullington relied on it and filed within the tolled period	Georgia's statute of repose cannot be tolled; parties’ agreement cannot defeat the repose and defendants made no wrongful misrepresentations	Affirmed: equitable estoppel applies; defendants are estopped from asserting the repose defense because they agreed to suspend it and Bullington reasonably relied on that promise
Whether a defendant’s mere agreement to toll a limitations defense can constitute the "other conduct" supporting equitable estoppel under Georgia law	The agreement itself is conduct inducing plaintiff’s forbearance and thus falls within Esener’s "other conduct" prong	Equitable estoppel requires wrongful concealing conduct or intentional wrongdoing beyond merely agreeing; here defendants did not conceal or fraudulently mislead	Held: The express promise to toll the repose was sufficient conduct to induce reliance; equitable estoppel applies (no requirement of concealment beyond the promise)

Simmons v. Sonyika, 614 S.E.2d 27 (Ga. 2005) (Georgia medical-malpractice statute of repose is absolute and may not be tolled)
Esener v. Kinsey, 522 S.E.2d 522 (Ga. Ct. App. 1999) (equitable estoppel prevents assertion of statute of repose where defendant’s fraud or other conduct induced plaintiff’s forbearance)
Osburn v. Goldman, 603 S.E.2d 695 (Ga. Ct. App. 2004) (discusses estoppel when plaintiff delayed suit due to defendant’s conduct; distinguishes concealment/fraud scenarios)
Hutcherson v. Obstetric & Gynecologic Assocs. of Columbus, P.C., 543 S.E.2d 805 (Ga. Ct. App. 2000) (estoppel analysis where alleged medical error was not apparent at time of treatment)
Hill v. Fordham, 367 S.E.2d 128 (Ga. Ct. App. 1988) (citing Esener’s "other conduct" language regarding estoppel)
Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067 (7th Cir. 1978) (example cited for equitable estoppel when defendant’s conduct induced delay)
Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231 (1959) (equity principle: one may not take advantage of his own wrong)