Peter Newberry v. Marc Silverman
789 F.3d 636
| 6th Cir. | 2015Background
- In the mid-1990s Dr. Marc Silverman (Ohio) performed a root canal on Peter Newberry (then Ohio resident).
- About ten years later Newberry returned complaining of pain; Silverman examined, took an X-ray, and gave alternative diagnoses (biting, bruised nerve, or cancer), advising monitoring; Newberry received similar reassurances on a later visit and by telephone after moving to Kentucky in 2005.
- In November 2012 an endodontist found the original root canal was incomplete and treated an abscess; Newberry then requested his dental records from Silverman, who produced limited records and said earlier X-rays had been discarded.
- Newberry sued Silverman in Kentucky state court in 2013; Silverman removed to federal court, the case was transferred to the Southern District of Ohio, and the Ohio district court dismissed the complaint under Rule 12(b)(6).
- On appeal the Sixth Circuit held Ohio law governs (transfer was not under §1404(a) because Kentucky lacked personal jurisdiction), vacated dismissal as to the fraud claim (fraud can be independent of dental malpractice) and remanded with leave to amend, but affirmed dismissal of malpractice, negligence, emotional-distress, and spoliation claims as time-barred or inadequately pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law (Kentucky v. Ohio) | Newberry: transfer included convenience grounds so Kentucky law should apply | Silverman: Kentucky lacked personal jurisdiction; transfer was under §1406(a) so transferee law governs | Ohio law applies because Kentucky courts lacked long-arm jurisdiction over Silverman |
| Personal jurisdiction in Kentucky | Newberry: Silverman made calls/emails into Kentucky and so is subject to Kentucky long-arm | Silverman: contacts do not fit Kentucky long-arm categories and calls were to a former patient who initiated contact | No personal jurisdiction under Kentucky long-arm statute; §1404(a) inapplicable |
| Applicability of Ohio’s 4-year dental statute of repose to fraud claim | Newberry: fraud is independent of malpractice under Gaines and accrues when discovered, so repose does not bar it | Silverman: claims arise from dental care and are barred by §2305.113 | Fraud can be independent; not barred by dental repose, but the complaint fails Rule 9(b) particularity and must be dismissed without prejudice with leave to amend |
| Other claims (malpractice, negligence, emotional distress, spoliation) | Newberry: negligence and emotional-distress derive from fraud and thus survive; spoliation based on destroyed records | Silverman: malpractice and related claims are time-barred; spoliation lacks alleged willful destruction and disruption | Malpractice, negligence, and emotional-distress claims are time-barred under Ohio law; spoliation fails for lack of pleading willfulness and disruption |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (courts need not accept conclusory allegations)
- Martin v. Stokes, 623 F.2d 469 (choice-of-law depends on nature of transfer)
- Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51 (Kentucky long-arm analysis two-step approach)
- Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (fraud can be independent from medical malpractice and accrues on discovery)
- Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (leave to amend should be freely given when complaint can be saved)