Fields v. Legacy Health System

George FIELDS, personal represen occurring after the effective transactions tative of the Estate of Laura The revocation of those of this order. date Fields, Plaintiff-Appellant, applicability shall not alter their provisions occurring or v. any transaction violation order, nor the effective date of this before SYSTEM, an, HEALTH LEGACY Ore rule, any applicability it affect the shall gon Corporation, dba/Legacy Labora order, license, form of or other regulation, tory Defendant-Appellee. Services. previously pur- action taken administrative George Fields, personal representative 12613 or 12959. suant to Executive Orders Fields; of the of Laura Estate Estate Nothing contained this order Sec. 8. Fields, Plaintiffs-Appellants, of Laura benefit, any right or substan- shall create by any par- procedural, tive or enforceable States, agencies Legacy System, its ty against the United Health Cor instrumentalities, employ- poration, dba/Legacy Laboratory or or its officers Ser ees, person. Defendant-Appellee. other vices. 03-35386, Nos. 03-35587. pursuant measures taken

Sec. 9. The response to actions of to this order are Appeals, United States Court occurring of Iran after the Government Ninth Circuit. Accords, Algiers of the 1981 the conclusion Argued Sept. and Submitted 2004. solely response intended as a and are those later actions. Filed June 2005. (a) order is effective at

Sec. 10. This daylight August

12:01 a.m. eastern time on

20,1997.

(b) transmitted to This order shall be in the Federal Congress published

Register. J. CLINTON

/S/WILLIAM HOUSE,

THE WHITE

August Lawrence, Perey,

Ron Carla Tachau Weinmaster, Doug Office of Ron Per- Law Seattle, WA, Foote, ey, Jeffrey P. Portland, OR, plaintiff-appellant. for the Lindsey Hughes, Keating H. Bild- Jones P.C., Portland, OR, Hughes, stein & the defendant-appellee. GRABER, GOULD,

Before: and. BERZON, Judges. Circuit GOULD, Judge: Circuit appeal wrong- consolidated involves This in ful-death actions filed two different fed- sitting diversity. eral in district courts Acting personal representative as of the wife, Fields, Laura estate his late George brought Fields an action for wrongful against Legacy death Health in System (“Legacy”) the United States District Court for the Western District of Washington. complaint alleged Legacy negligently caused Laura Fields’ by failing to diagnose her cervical smear, from a Pap sought cancer and dam- Fields-, ages Raven a minor child Laura George Subsequently, and Fields. action in George Fields filed identical for the United States District Court I Oregon federal Oregon. The District Oregon’s statutes of applied court district had a On Laura Fields August George repose to dismiss and limitations analyzed at the Pap smear collected denied him prejudice, with case Fields’ in Legacy Hospital Port- Good Samaritan his and denied complaint, amend leave to land, Legacy Defendant-appellee Oregon. certify state constitutional his motion corporation that owns this non-profit questions Oregon Supreme to the Court. 4, 1994, hospital hospital. August On Thereafter, federal district Washington Pap employee analyzed Laura Fields’ Washing- Fields’ George court dismissed that it was “Within smear and concluded on statutes of Oregon’s ton based action Negative.” employ- Normal Limits. on repose, collat- as well preg- also that Laura Fields was ee noted estoppel grounds. eral Raven Fields was born on March nant. rulings. Fields these George appeals 19,1995. contends that the district courts He first applying Oregon in law instead erred family In Fields moved to alternative, he law. In the Washington 4, 1996, Laura Washington’ March On applies, if we Oregon law argues that Pap Fields another smear and cervical had (1) disability Oregon’s apply should either: procedures showed biopsy. These Oregon’s tolling provision toll cancer. Laura she had cervical (2) limitations; apply death statute claim negligence filed George Fields Conflict “escape clause” the Uniform for the against Legacy the Circuit Court (“UCLLA”) to Act allow Laws-Limitations eventually Oregon, parties and the State (3) strike Washington proceed; his suit agreement whereby a settlement reached of limitations and Oregon’s down statutes Laura damages exchange for paid were they violate United “any and all release Constitution; certify to the States and their claims” on behalf themselves Supreme Court whether “heirs, assigns.”2 executors and of limitations and statutes .violate the state constitution. January Fields died on Laura Washington. a resident of jurisdiction pursuant have to 28 while

We representative of Laura Acting, personal § the 1291. affirm district U.S.C. We éstate, brought George Fields Oregon reject choice of law and Fields’ courts’ wrong diversity against for Legacy that we action George Fields’ contentions can toll death, bringing ful suit in the United wrongful statute of limita Oregon’s death Dis for the Western apply “escape States District Court tions or the UCLLA’s 23, 2002. on Washington trict of December permit Washington go suit to clause” his in the also an identical action also the He filed Oregon We hold forward. the Dis District Court for repose do not United States statutes of limitations Leg of 2003. Oregon January or trict on the United States Constitution violate Oregon action acy moved to dismiss the Oregon the Constitution.1 ad- Oregon 2. courts 1. we the Neither of the federal district Because affirm district George wrongful Fields’ scope court's dismissal of the dressed release contained the suit, George claim that he is Fields’ agreement they dis- this settlement complaint entitled to amend his without leave George on Ore- posed of Fields' actions based 15(a) Federal Rule Procedure is under of Civil gon’s repose. statutes of moot. Proce II pursuant to Federal Rule Civil 12(b)(6), Oregon dure and the federal dis George We first address Fields’ motion, dismissing granted trict court its argument the district courts erred in George prejudice claim with on the Fields’ applying Oregon’s statutes of limitations by ground that the suit was barred Ore because, to dismiss his claims gon’s statute of limitations3 and also was argues, “Washington by has far the he by Oregon’s repose.4 barred statute of compelling having most interest its Washington district court deci federal applied death statute to this followed, applying Oregon’s statute of sion sitting diversity case.” Federal courts limitations and statute “the forum state’s choice of law apply must ac Washington to dismiss controlling rules to the substan determine timely prejudice. George tion with Fields Cox, tive law.” Patton v. 276 F.3d appealed the dismissals from both of the (9th Cir.2002).5 Although the courts, federal district and we consolidated grounds district court relied on that we purposes appellate for the the cases parallel unpersuasive, issues. find we affirm its decision to review because the 30.020(1), pro- years § Revised Statutes commenced within two from date injury vides: first or in the when is discovered exercise of reasonable care should have person by When the death of a is caused However, been discovered. notwithstand- another, wrongful act or omission ing provisions [the of ORS 12.160 dis- decedent, personal representative of the statute], ability tolling every [malpractice surviving the benefit of decedent's shall be commenced within five action] spouse[or] surviving may children ... treatment, years from the date of omission against wrongdoer, maintain an action operation upon might which the action is based if decedent have maintained an or action, lived, against had the decedent by wrongdoer injury five-year repose period for an done the same This is absolute in the fraud, deceit, misleading act or omission. The action shall be com- rep- absence or a resentation, years menced within three after the statutory exception for which a causing Clinic, Inc., the death of the decedent is discov- applies. Urbick v. Suburban Med. reasonably ered or should have been dis- Or.App. 455-56 decedent, by by personal covered (1996). It does not when the claim matter representative person for whose accrued, or it has accrued. Id. at 457. even if may brought be benefit the action under person wrong- this section if that is not the pur 5. A dismissal for failure to state a claim may In no an action be com- doer. case suant to Federal Rule Civil Procedure menced later the earliest of: 12(b)(6) than reviewed de novo. Ltd. v. Libas (a) Three after the death of the dece- Carillo, (9th Cir.2003). F.3d dent; or allegations fact taken as All of material are (b) longest period for other com- light true and viewed in the most favorable to mencing an action under a statute of ulti- the non-movant. Nat’l Ass'n the Advance for repose applies mate the act or that to omis- Bd., Psychoanalysis v. ment Cal. 228 F.3d of causing injury, including sion but not 1043, (9th Cir.2000). However, ”[c]on 1049 limited to the statutes ultimate of clusory allegations of law and unwarranted 12.115, 12.110(4), provided for in ORS inferences are insufficient to defeat a motion 12.135, 12.137 and 30.905. failure state a claim.” Id. to dismiss for Oregon malpractice 4. The medical statute of We review de novo a district court’s choice of 12.110(4), § repose, ultimate Or.Rev.Stat. decisions, T, Inc., Abogados v. & 223 law AT provides: 932, (9th Cir.2000), F.3d 934 as well as its law, Realty, interpretations state damages injuries Feature An action to recover 1082, City Spokane, person arising Inc. v. 331 F.3d 1086 medical ... from treatment, (9th Cir.2003). operation n. or shall be 3 omission

951 district court Oregon choice erred our Oregon law because apply The law leads us to Oregon under analysis determining law that difference between Or Oregon gov law that conclusion the same of limitations and that of egon’s statute dis Washington agree with erns. We can raise an actual conflict another state and affirm its choice analysis trict court’s Oregon’s choice of law purposes for the Oregon law. analysis. Oregon, Washington, like has ÜCLLA, perti which states in adopted the use the Washington and Oregon part: nent dealing with approach same bifurcated Both states’ laws law issues. conflict of (1) 12.450, Except provided ORS make a threshold determina us to

require substantively if a claim is based: an actual conflict be that there is tion (a) state, Upon the law of one other and that of of the forum tween the law Equip., applies; Trailer & period state. Portland limitation state another Storage, Moving A-1 Freeman & Inc. v. (b) Upon the law of more than one 347, 803, Inc., 49 806 Or.App. P.3d 182 state, period limitation of one of Co., Dow (Or.Ct.App.2002); Rice v. Chem. states, by the law of con- those chosen P.2d 1216 124 875 Wash.2d state, applies. flict of laws of this (Wash.1994). exists If no material conflict of the forum laws or interests between the of this period The limitation state state, apply forum law. the other we and applies to all other claims. Rice, Trailer, 806; 875 49 P.3d at

Portland 12.430; § Rev. see also Wash. Or.Rev.Stat. conflict, we 1216. If there is P.2d at (same). provi- § 4.18.020 Under this Code analysis step of the to the next proceed sion, initial courts must determination choice of law test. the forum’s apply and over the involving disputes make in cases Rice, 809; Trailer, at 875 49 P.3d Portland of limitations is which relevant statute 1217. P.2d at law forms the basis of state’s substantive a con parties here identified Cropp v. Interstate plaintiffs claims. Oregon’s Washington flict between Co., P.2d Or.App. 880 Distrib. of limitations.6 wrongful death statutes Rice, (1994); 1216. 875 P.2d at this accepted court district decides which state’s sub- Once the court the threshold as one that satisfied conflict governs, that state’s statute stantive law choice of law requirement under P.2d at applies. Cropp, apply Oregon’s proceeded rules Rice, 465; at 1216. In other Washington dis choice of law test. The words, Washington like UCLLA states court, however, identified a conflict trict limitations as treat statutes of statutes of between the states’ purposes of conflict procedural for analysis law from its choice of conducted analyses. law starting point. (1990) (holding that P.2d wrongful Oregon requires death actions general in Wash. Rev. statute of limitations brought the date be within three from 4.16.080(2) applies § causing or rea- Code death is discovered malpractice instead Or. cases based on medical sonably have been discovered. should limitations, hand, 30.020(1). malpractice of medical statute § the other the On Rev.Stat. 4.16.350, legisla- § because Wash. Rev.Code Washington allows death actions before intend to bar claims even malpractice ture did not claims to be based on medical right bring ac- triggered accrual years date of brought within three of the 4.16.080(2). tion); § Rev.Code Wash.App. see also Wash. Kirkpatrick, 56 death. Wills v. 952 hand,

On the other Washington Oregon court would apply Oregon law to of repose part treats statutes “as of the present the case.9 body of a state’s making substantive law in Oregon and Washington both fol Rice, choice-of-law determinations.”7 875 (Second) low the Restatement of Conflict Here, at 1217. Oregon P.2d has a statute § of Laws 145 approach for deter repose extinguishes all actions mining what substantive law apply should on a claim of malpractice based medical Lematta, in tort cases. DeFoor v. 249 Or. brought that are not within “five 116, 107, 437 P.2d (1968); Rice, n. 108 5 treatment, from the date of the omission 875 P.2d at 1217. Restatement, Under the upon operation which the action is a court should consider following the con 12.110(4). § based.” Or.Rev.Stat. tacts to determine which state has “the DeYoung Center, v. Providence Medical significant most relationship” to the case: 136, (wash. 919, 136 Wash.2d 960 P.2d 926 (a) place injury occurred; where the 1998), however, the Washington State Su (b) the place where the causing conduct preme Court Washington’s invalidated (c) injury occurred; domicile, resi- malpractice medical statute of repose. Be dence, nationality, place of Oregon incorporation applicable cause has an statute of place and of business of repose not, parties; while Washington does there is (d) place a valid conflict where the Oregon relationship, between if any, and Wash law that between ington requires parties us apply is centered. Wash Restate- (Second) Rice, ington’s choice of law test. ment § See of Conflict 875 of Laws 145. at 1217. P.2d Here, Oregon significant has the most injury contacts. The in this case was Lau-

Oregon yet has to decide whether ra misdiagnosis Fields’ inability repose statutes are pro substantive or treatment, seek cedural, not her resulting but this does not affect death. our hold The conduct ing Oregon causing injury law governs Lega- was If, cy’s Oregon negligence action. in analyzing as likely, seems Laura Fields’ smear, Oregon Supreme pap Court would consider this also occurred Ore- Oregon’s repose gon. statutes of Legacy to be substant is an Oregon corporation ive,8 application Oregon’s then choice of that maintains its principal place of busi- will lead test to the law conclusion that an ness in Oregon. Laura Fields was an Although Co., 650, distinction (S.D.Ohio between F.Supp. 1984); statutes of 588 653 repose Miller, statutes of 565, is often Berns Constr. Co. v. 491 N.E.2d blurred, statutes of limitations differ from (Ind.Ct.App.1986), 570 516 N.E.2d 1053 aff'd repose (Ind.1987); statutes because the former "bars v. Processing Harris Clinton Corn Co., bringing 812, from plaintiff[s] already (Iowa accrued 1985); 360 N.W.2d 816-17 time,” specified period after a 331, claim Baughman, where- Boudreau v. 322 N.C. 368 849, right (1988); the latter "terminates a of action after S.E.2d Dep’t DePaolo v. time, specific yet even if the Welfare, (Pa. has not Pub. 865 A.2d 305 n. 7 Rice, Commw.Ct.2005); Rice, occurred.” 875 P.2d at 1216. 875 P.2d at 1217. general weight authority accepts 8. The 9. If Supreme State were Court characterization of statutes of as sub decide that statutes procedural, are provisions stantive in a choice of law context. then choice of law rules would lead See, e.g., result, Corp., Goad v. Celotex 831 F.2d to the "Oregon same courts (4th Cir.1987); Wayne Valley v. procedural Tenn. resolve issues under law” Auth., (5th Cir.1984); 730 F.2d 401-02 in the conflict of laws context. v. Cont’l Manz Davis, F.Supp. Co., 952-53 Pottratz Am. Ins. Or.App. Life (D.Md.1984); (1993). Nieman v. Equip. Press & Sales to plaintiffs Washing her law where the move when she sustained Oregon resident although Oregon’s significant not injury misdiagnosis, extinguish of she subse- ton did Washington resident and in dangerous products a interest quently allegedly became Rice, who are Wash- leaving died beneficiaries used within its boundaries. Finally, relationship Moreover, ington residents. 1217-19. application at of Legacy existed Laura Fields between law Oregon achieved a uniform result for Laura Fields was under- Oregon in while injuries by products caused used within e Legacy’s hospital. at going treatment provided predictability the stat and for sum, significant a few con- Washington has in products manufacturers whose are used case, they but are less tacts with this Oregon. Id. at 1219. Oregon’s contacts. significant than reasoning applies The same here. Ore- Also to Restatement’s relevant in gon has interest clear standard a determination .of analysis choice of is law medical its care within boundaries. Ore- having ap- in law each state’s interest its regulate has the gon ability to medical 109-10; DeFoor, P.2d at ply. Johnson in industry It also has an inter- state. Corp., 87 Wash.2d Spider Staging providers in medical protecting est its (1976). George P.2d 1001-02 from stale claims and the excessive finan- Washington’s interest Fields contends that litigating wrongful cial burdens seeing compensated in for an its residents Johnson, See, claims. at e.g., P.2d paramount. is allegedly wrongful death Oregon’s 1002. We hold that statutes However, noted, courts as both district apply repose George Washington Supreme pre- Court has State in brought Oregon Fields’ claim whether viously Washington’s in held that interest Washington. or inju- seeing compensated its residents overriding ries is not where other contacts Ill Rice, minimal. Washington

with are 1218-19; also P.2d at see Restatement Having Oregon concluded law (Second) § of Laws e of Conflict 145 cmt. applies Washing both (“that one is ... in parties of the domiciled actions, George consider ton we next given usually carry weight state will little argument statutes itself’). limitations and do not bar the claim his he is behalf of child be bringing on factually is case: Rice similar this anti-tolling provision cause “the in ORS plaintiff diagnosed, The in Rice was while 12.110(4) incorporated ... not into ORS residing with al Washington, in leukemia reject argument this legedly exposure his hazard 30.020.” We by caused permit not statutory text does ous chemicals manufactured and sold interpretation urged by Fields. working while he was defendant Statutes Oregon. Washington Supreme State Revised section 30.020(l)(b) incorporates section Oregon’s product liability expressly Court applied 12.110(4), malpractice statute statutes limitations and to dis the medical repose, expressly prohib in turn miss the action because the mere fact of which statute, disability tolling residency Washington alone insuffi its the use of the was section 12.160.10 application Washington cient to warrant decedent; (b) 30.020(1) years after of the provides pertinent the death Section longest period for commenc- part: may an com- other “In no case action be (a) ing re- of: a statute of ultimate menced the earliest Three action under later than 954

Moreover, plain language computation the of the dis substantially rules] dif- statute, 12.160,11 ability lim tolling section period ferent from the limitation of this its its to application mentioned “action[s] oppor- state has not afforded fair 12.050, in ORS 12.010 12.070 to 12.250 tunity upon, imposes to sue or an unfair v. Stupek Wyle 12.276.” See also claim, against, in defending burden Or. Corp., Labs. 963 P.2d limitation period ap- this state that (holding courts lacked authori plies. ty statutory to toll claim discrimination for clause,” provision “escape This is an allow insanity the claim enumer where was not ing court to the disparate evaluate effect ated in section 12.160 and anti-discrimina foreign of a statute limitations and tion provide statute not did otherwise apply period choose a local limitations tolling). actions appealed here fall Bell, Inc., avoid unfairness. Hein Taco statute, Oregon’s wrongful under Wash.App. 333-34 30.020, clearly section which is not within (1991). the statutory ranges listed in section Thus, 12.160. we apply decline to section Application “escape of this clause” to George 12.160 to toll Fields’ permit George avoid Fields to death action. statute of does not limitations resolve George problem because his claim IV by would still be Oregon’s barred statute that, George Fields also contends words, repose. other George Fields law, if apply Oregon we we should follow has to circumvent both statute of “escape provision clause” in the UCL- limitations and its of repose statute in LA to Washington go allow his case to order continue his action the Wash- Washington’s forward of lim under statute court, ington district the language but itations. “escape only clause” covers above, As Washington noted has periods Washington State Su- adopted the Rice, UCLLA. Wash. Rev.Code preme expressly Court held in §§ 4.18.010-.904. Section 4 of the UCL- P.2d at that statutes of are LA, Washington which at is codified Re- not the same as statutes of limitations for 4.18.040, vised provides: Code section purposes. conflicts law We conclude If court determines that the limita- Fields’ claim is time-barred law, tion period applicable of another of repose state statute under Washington under notwithstanding [the conflict of law “escape the UCLLA’s borrowing period statute and limitation clause.” If, pose accrues, applies to the act at or omission caus- the time the cause action ing including injury, but not limited to the any person bring entitled to an action men- repose provided statutes of ultimate for in 12.050, tioned ORS 12.010 to 12.070 to 12.110(4)....” ORS age 12.250 12.276 is within the of 18 12.110(4) provides pertinent part Section insane, years disability or the time such that, "notwithstanding provisions of ORS part shall not be a the time limited for statute], disability tolling every 12.160 [the action; the commencement of the but the [malpractice] action shall be commenced period within which action shall be within five ment, from the date of the treat- brought shall not be extended more than operation upon omission which the years by any disability, five such nor shall it action is based.” longer be extended in case than one year disability

11. full text Section 12.160 after such reads: ceases. has or not the basis a foundation whether Y Id. in the record. George Fields’ asser- address We now statutes wrongful death that tion Here, in the the classifications made Or equal the repose violate of repose of limitations and are egon statutes clauses of the process and due protection rationally legitimate legisla related the Constitution. United States and limit avoiding ends of stale claims tive litigation and medical care. ing costs 1 252, Hosp., Or.App. 93 See Jones v. Salem argues that the Or George Fields (1988) 303, (noting P.2d 309 that Ore 762 of limitations wrongful death statutes egon malpractice repose statute gon’s medical equal protection be violate repose to the so called response was “enacted be impermissibly discriminate they cause ”). The stat malpractice ‘medical crisis’ happen decedents tween claimants whose protec equal at here withstand utes issue years after live for more than three scrutiny under the United States Con tion injury causing death discovering the Blehm, 743 F.2d stitution. See Nored v. injury sustaining years and five Cir.1984) curiam) (9th 1386, (per (up 1387 case, death, in Laura’s causing as constitutionality of a similar holding the die whose decedents within claimants statute of limitations in face of injury discovering the caus years of three challenge); v. Sealey equal protection sustaining ing death and five 435, Hicks, 387, 788 P.2d 441 309 Or. causing death. (1990) Oregon prod (holding that similar not liability does vio uct statute of equal level appropriate clause), protection abro equal late federal “ra in this case is the protection review grounds by v. gated on other Smothers test,” applies- which chal tional basis Inc., 83, 332 Or. Gresham Transfer legislative acts that neither affect lenges of (2001). 333 rights, nor the exercise of fundamental classify protected on char persons based 2 race,

acteristics, alienage, such national See, v. e.g., Silveira Lock origin, or sex. that argues Fields further (9th 1052, Cir.), 1088 cert. yer, 312 F.3d of limitations and Oregon statutes denied, 803, 157 124 S.Ct. 540 U.S. procedural as- the substantive violate (2003). test, this stat L.Ed.2d 693 Under of the process due clause pects “presumed to be valid generally utes are These claims States Constitution. United if classification and will be sustained fail. must rationally related drawn the statute First, purposes for the sub (quoting interest.” Id. legitimate state review, Ctr., actions process state City Living stantive due Cleburne v. Cleburn e 432, 440, implicate anything less than funda 473 105 S.Ct. 87 U.S. (1985)). essence, require only govern that the legisla right mental L.Ed.2d 313 subject ment demonstrate “a reasonable relation tive to rational basis classification justify interest to scrutiny ‘wholly legitimate vio to a state “must irrational’ to be Tandeske, F.3d Martinez v. action.” Doe 361 equal protection.” late de Cir.2004) Cir.2004). (9th curiam), (9th cert. de Ashcroft, (per 764 597 F.3d — nied, —, negat U.S. S.Ct. challenger the burden bears Washington v. (quoting L.Ed.2d 25 every might which ing conceivable basis 702, 722, 117 classification, S.Ct. Glucksberg, 521 U.S. support legislative (1997)). 138 L.Ed.2d 772 This is the process challenges to cutting statutes off appropriate standard of review for this See, right ground. to sue on e.g., this Oregon’s wrongful case as Austin, statutes 855 F.2d at (holding implicate do not “personal of the activ retroactive application of amendments to ities and Supreme decisions” the has Court plaintiff bar pursuing from suit com- being “deeply identified as rooted in our prior menced to effective date amend- history and traditions” or “fundamental to ments did not procedural violate pro- due our concept constitutionally ordered lib cess plaintiff yet because had not obtained erty.” (citing Id. at 596 Glucksberg, 521 a final judgment). U.S. at 727 & n. 117 S.Ct. which Moreover, assuming even that marriage, association, listed family and George Fields a cognizable has property activities). procreation as fundamental right action, in his cause of procedural his Applying this deferential standard of re- process due challenge fails because it is view, we conclude that Oregon’s statutes of well legislature established that can and do not violate adjust the benefits and burdens of our rights Fields’ to substantive due economic long lives as as it not does be because, process above, explained arbitrary have an way. irrational rationally statutes are legiti- related to the 1086; Austin, Lyon, 252 F.3d at 855 F.2d legislative goals mate avoiding stale at (explaining 1436 that legisla economic limiting claims and litigation costs of tion “come[s] to the Court with a presump malpractice claims. tion of constitutionality, ... the bur We reach the same result under a den complainant] is on [the to establish procedural due process analysis. Al legislature has acted an arbi though briefing his point, is unclear on this trary way”). and irrational appears it that George procedural Fields’ upheld We have statutes of process due argument theory rests on the where we determined that legislature that he deprived has been property a was pursuing policy a rational in enacting right “remedy” in his or cause of action Lyon, them. 252 (holding F.3d at 1086 process without due of law. that retroactively applying repose statute Causes species of action are a to cut off claims accrued before its property protected by the Fourteenth procedural enactment did not violate due Amendment’s Lyon Due Process Clause. process legislature because was acting to S.P.A., (9th v. Agusta 252 F.3d 1086 further rational goal of revitalizing flag- Cir.2001); States, Zavala v. United 876 ging aircraft industry). stat- (9th Cir.1989); F.2d Austin v. ute of repose, ultimate Oregon Revised Bisbee, City (9th 855 F.2d 12.110(4), Statutes section was a rational Cir.1988). However, party’s property “a legislative response to the mal- medical right cause of action does not vest practice problem crisis and to the of stale until a final judgment unreviewable is ob claims. Accordingly, we sustain it in the 1086; tained.” Lyon, 252 F.3d at see also face of George procedural pro- due Austin, that, 855 F.2d at 1436 (explaining challenge. cess although a cause of species action is a property, “it is generally inchoate and affords Courts will uphold no a definite or property right enforceable against until statute of limitations a process due judgment”). reduced to final pre challenge Thus we as long plaintiff as the is accord viously rejected procedural time, similar due ed a reasonable under all the circum wrongful death as “nonsensi- gon’s scheme the bar takes stances, suit before bring Jackson, See, “rewards “irrational” because it e.g., cal” and effect. Wheeler 76, 34 245, 255-58, 11 L.Ed. 659 S.Ct. injured who person U.S. beneficiaries of the authorizing that statute (holding ... of limitations dies within the statute where realty- records sales cancellation harming hopeful beneficiaries while conveyance compel failed purchaser [canjnot injured person file a claim an who deprive pur years did not eight within However, injured person dies.” before the purchas property chaser of rights persuaded. we not are conveyance, right was “property” er’s circumstances under such cancellation 30.020(1)provides a Section reme imposed limitation reasonable simply was only dy “if decedent’s beneficiaries Brackney right12); of that on enforcement an might maintained decedent have Inc., 674 F.2d Eng’g, v. Combustion action, lived, against the had the decedent (9th Cir.1982) (rejecting process due done the same wrongdoer for of state application to retroactive challenge Oregon Supreme As act or omission.” the disability to six tolling limiting for statute McClung, explained in v. it Court Storm cause of action which accrued years to bar essentially places personal a decedent’s date); Pittman v. to its effective prior shoes, representative in the decedent’s im (9th States, 739, 741 Cir. 341 F.2d United representative to the whatever puting 1965) two-year application (holding that of rights rights the and limitations to those to claim did not period limitations minor’s possessed. 33 Or. decedent himself minor process though even had due violate that (holding bene period at guardian no ad litem the time the working of volunteer killed while ficiaries ran). city from a bringing for were barred Here, challenged statute of limita- wrongful death action because the accident tions, Oregon Revised Statutes section already by Oregon’s was workers’ covered 30.020(1),provides wrongful ac- death there a statute compensation law and was brought tions must be within three liability from immunizing bodies for public injury causing date the death was pre have such covered' claims that would misdiag- Since Fields’ discovered. Laura suing himself from cluded volunteer 4, 1996, nosis was discovered March on words, city negligence). for In other George Fields would have had to file this 30.020(1),by terms, its own “ORS 4, 1999, by action March in order to avoid give personal repre a does not decedent’s prob- bar. The the statute limitations - tortfeasor] a right sue[a sentative course, lem, point- Fields has George negligent wrongful death when dece case, out, that in this the statute of ed right in the first dent never had that right bring eliminated his . beneficiary’s wrongful death ac place,” a Laura wrongful this suit even before death sec tion under Revised Statutes on January Fields died 2000. Conse- 30.020(1) the, dece Ore- tion is derivative quently, George Fields characterizes time, vided, each-case,.a tak- holding, Supreme reasonable so Court stated: ing all into consider- the circumstances court that It is the settled doctrine of this ation, by for the legislature may given be the new law prescribe a limitation previ- bringing of where for the suits bar takes commencement suit before the none existed, ously as well as shorten the time effect. existing suits within which to enforce Wheeler, 137 U.S. at 11 S.Ct. 76. commenced, pro- may causes of action be right dent’s to sue for the same existence of controlling Oregon precedent when alive. Id. at 481. for a question certified is one of the most important militating against factors Oregon’s Given that wrongful Oregon Supreme Court’s discretionary ac statute is intended to allow benefi ceptance of the question); certified see ciaries to only compensation recover Cohen, also Kremen 325 F.3d decedent, that was otherwise due the (9th Cir.2003) 1037-38 (noting that we fact that the statute of limitations eliminat have discretion whether to certify ques George ed death claims as tion of state law and that the “certification representative the estate Laura procedure is ques reserved for state law Fields, they even before accrued does not present tions that significant ... issues unusually lead “harsh” result in this yet and that have not been resolved case because Laura already Fields lived courts”). state long enough bring suit herself and re cover a settlement In light award.13 George Fields contends that Storm we hold that the Oregon statute of limitations, wrongful death statute of Or. limitations was applied reasonable as 30.020, § malprac- Rev.Stat. and medical this case. tice statute repose, Or.Rev.Stat. 12.110(4), § violate the state constitution’s VI remedy clause, which provides “every finally consider We Fields’ man remedy by shall have due course of request certify that we Oregon to the Su injury law for him in person, done his preme questions Court the whether Ore Const, property, reputation.” Or. art. gon’s wrongful death scheme violates the I, § 10. Oregon remedy Constitution’s clause and privileges George key its Fields’ immunities clause. assertions We with re- decline spect remedy to exercise our to his certify discretion to clause claim are that questions wrongful these because “controlling prece actions existed in Oregon dent,” 28.200, § Or.Rev.Stat. is available at common law at the time the state consti- guide Servs., us. See W. Helicopter Inc. v. tution was in adopted 1857 and that the Roger 361, son Corp., legislature 311 Or. 811 state lacks the authority to Aircraft (1991) 627, P.2d 631 (explaining that deny the a remedy for to the kinds of George maintaining FHP, Inc., greatly Fields errs in that we diminished.” Parrino v. 699, agreement (9th Cir.1998) cannot consider the settlement be 146 F.3d 706 & 4n. the district (holding cause courts declined to do permissible so and that it was for district complaint. 12(b)(6) it entertaining is extrinsic to the We court motion to consider group can affirm a dismissal for application failure to state a by insurance offered defen any proper ground supported by claim on alleging dant in improper action denial of benefits). record even if the district did not con court we Thus can consider the settle Gwinn, 817, sider v. 264 agreement issue. Ove F.3d demonstrating ment as that Laura (9th Cir.2001). Additionally, 821 while our bring Fields had a reasonable time to suit on 12(b)(6) generally review of a injury, dismissal is gained as she fact did so and However, complaint, limited to the contents of the recovery. Gilli some we decline to in gan 246, Corp., v. Jamco 108 terpret Dev. F.3d 248 in the scope first instance the of the (9th Cir.1997), we can by consider extrinsic parties by release entered their settle integral plaintiff's 9, 1998; document it if is to the agreement January ment authenticity undisputed, claims and its scope is be of the release has never been addressed plaintiff court, cause in “obviously by such cases the either federal district we consid on notice of the contents of the document and inadequate er the record for our conclusive the need interpretation chance to refute evidence is of the release.

959 un- measured the statute of lines of court existed then. Two rights that that, Oregon both territorial law Oregon dictate der controlling precedent 12.110(4) section from law, reject Revised Statutes we must current under medical allegedly negligent of the the date assertions. the defendant. Because treatment First, Oregon Supreme Court more action was commenced plaintiffs that, in Oregon, repeatedly has held later, the ruled that years than six court wrongful purely death is action for right of already law any action at common would no was statutory and that in there it by the law as existed have been barred wrongful death at com action for right of I, adopted Article sec- when framers 479-82; Storm, 47 law. P.3d at mon Accordingly, Id. there tion 10. at 1139. 358; Smothers, v. Senco 23 P.3d at Lakin be no violation. Id. could constitutional Inc., 62, 463, Prods., 987 P.2d 329 Or. case, duty that resulted this breach 369, 472(Or.), by 329 987 op. Or. clarified August Laura Fields’ death occurred on (1999); Day Mgmt. v. 476 Kilminster P.2d 1994, 3, was but no death action 474, 618, 479 323 Or. 919 P.2d Corp., 23, 2002, more than filed until December 281, (1996); 906 Phillips, v. 322 Or. Greist then, Barke, there six later. As (In 789, (1995); Hughes 796 v. White P.2d no violation. could be constitutional White), Or.13, P.2d 289 re Estate 609 Supreme will Court (1980); Motors 365, v. Gen. Goheen 368 to consider not exercise its discretion 223, 145, 263 Or. 502 P.2d Corp., unless, re among other question certified Slate, (1972); Richard 239 Or. v. controlling prece is no quirements, “there (1964), superseded by statute P.2d the Supreme in the Court dent decisions v. stated in Rennie grounds on other courts of appellate the intermediate 294 Or. Pozzi § We this state.” Or.Rev.Stat. 28.200. (1982); Gen. see also Perham Portland of the Ore therefore must consider cases Co., 53 P. 33 Or. Elec. deciding to Appeals of before gon Court a “new (recognizing wrongful that death is certify question Oregon Supreme a to the statute); by of action” created Put right Helicopter, 811 at 631. Court. W. P.2d 1033, Co., 230, Pac. 21 Or. 27 P. man v. S. Barke, by Oregon a Court of decision (1891) (same). prec Under these 1033-34 Oregon’s wrongful that Appeals, holds edents, section Oregon Revised Statutes repose, as of limitations and death statutes sec Revised Statutes Oregon 30.020 and I, here, sec not violate Article do applied 12.110(4) I, Article sec not violate tion do 10, In Oregon of Constitution. tion .the tion 10. certify holding, we decline to view of that Second, Appeals Oregon Court of remedy Oregon Court the Supreme to the claim has held even common a law if by question George framed Fields. clause Oregon existed in wrongful death certify the decline to 1857, a territorial law We also so did pre-existing of wheth by George Fields urged containing question a of limitations six-year statute statutory Oregon’s' wrongful at the death statute of that accrued er and Oregon act. time of the occurrence of the tortious scheme violates the Constitution’s Maeyens, immunities clause. Article Or.App. privileges Barke v. denied, (2001), I, Oregon rev. 333 Or. 20 of the Constitution P.3d section (2002) passed law provides of that: “No shall be (citing 45 P.3d 448 Statutes or any to citizen class of citizens granting Act for the Limitation Oregon immunities, which, 171). Barke, upon or Actions, 1, 4,§ privileges, p. ch. terms, equally that, same shall belong plained “[a]ny not to all repose, by statute of argues citizens.” Fields that Ore- setting a beyond time limit legis- which the gon’s wrongful death statute recognize lature to declines the existence I, statute of violate Article legal injury, will of a divide tortfeasors and they impermissibly section 20 because dis- upon their victims into classes based those wrongful criminate between classes However, a time limits. such decision is happen death claimants whose decedents purview within the legislature.” Id. years to more than three after survive added). (emphasis See also Van Wormer death, discovery injury causing of the Salem, City 309 Or. case, Laura Fields’ and claimants (rejecting to a challenge classifi- whose decedents died years within three cation which only “exist[ed] because the discovering causing death. statutory scheme of which it part a [wa]s Oregon Supreme The which rejected exist[ed]” Court a “not was based on a challenge very characteristic, in any similar classification ad hominem such as race, Sealey, Sealey plain- affiliation, 788 P.2d at 440. The religious sex or of [class] members”). tiff argued Oregon’s products liability repose, required statute of which products allegedly unconstitutional classifica- liability brought eight cases be within similarly tion here is on based the time years purchase, after the date of violated Oregon limits the impose statutes on the state privileges and immunities clause claimants, death rather than on persons injured prod- because it denied personal of wrongful characteristics years ucts than eight more their after whose happen claimants decedents initial legal per- sale the same claims as than survive more three after injured by products sons sold more recent- discovering injury causing their ly- Thus, deaths. open question there is no Sealey court stated: under case law about whether The question plaintiff is whether ais George Fields has identified actionable class, member some whom have under class Constitution’s priv- been a privilege immunity denied or ileges immunities We clause. there- granted class, to others in the same or certify fore decline to this issue for the whether the manufacturers and sellers Oregon Supreme Court’s consideration. products granted privi- have been lege immunity equally not available

others in the same class. VII evaluating I, whether a class exists under Article affirm We the district courts’ choice of 20, section we must first determine law, Oregon decline to toll ivhether the class by is created the chal- wrongful limitations, death statute of lenged by law virtue charac- itself conclude that the UCLLA’s “escape apart teristics law question. the in from clause” permit George does not Fields to (internal citation, Id. quotation marks and proceed with action in Washington his added). ellipsis omitted; emphasis district court. We also that hold the Ore- standard, this Applying court Sealey gon statutes of limitations and vio- held that alleged by the classes plain- late neither the United States Constitution tiff improper they were because were nor the Oregon Constitution. “clearly by challenged classes ‘created ” law itself.’ Id. court The further ex- AFFIRMED.

961 1066, (2001); GOULD, concurring. 1079 Haakanson v. Judge, A.2d Circuit Inc., Seafoods, 1087, 600 P.2d Wakefield additionally to separately and I write (Alaska 1979); n. 1092 & 11 v. D.F. Wilbon ability, in regret that we have no express Co., 394, 58, 22 Bast 73 Ill.2d Ill.Dec. 382 case, diversity to control this reexamine 784, (1978); Rohlfing N.E.2d 785-87 v. on the consti ling Oregon precedent state Akiona, Ltd., 373, Moses 45 Haw. 369 P.2d remedy clause issue and allow tutional (1961), grounds by overruled on other given the decedent’s remedy to be Texeira, 231, v. Greene Haw. 505 P.2d Supreme daughter. Oregon Court (1973); Webb, Gaudette v. 362 Mass. appellate courts have and its intermediate 222, (1972), it N.E.2d must no com consistently held that there was Oregon action of Supreme come wrongful to recover right mon law for Court, not from this Court. Oregon has Supreme Court death. its expressed misgivings prec about

twice 210, 47 334 Or. McClung,

edent. Storm v. (2002) n. 4 (explaining

P.3d 482 & ap previously court has has been

“[t]his questionable premise under

prised of the was

lying widely held view that there wrongful

no common-law action for acknowledged as much” but declin [and] BRADLEY, Petitioner- Nicole it “is ing question consider the because Appellant, case”); v. point in this Goheen beside Corp., 263 Motors Or. Gen. history of (reviewing 225-27 Respondent- wrongful HENRY, Warden, stat death actions Gloria may Appellee. be some ing “[although there in that view had a [that merit No. 04-15919. right law of action for common death], previous are to our own decisions Appeals, United States Court of prefer our contrary, and we to rest Ninth Circuit. grounds”). on decision this case other Nonetheless, Oregon Supreme Court Argued April 2005. Submitted expressly prior prec overruled its has not June Filed edent, liberty and we are not at alter a on law established case law a state state’s regrettable It further that we

issue. remedy properly clause

cannot tender Oregon Supreme

issue to the Court its

decision, Oregon Supreme explicit setting has its certi

Court been guidelines, and under those stan

fication may now certified.

dards this issue not be law, state change

If to come

bringing Oregon alignment into with the jurisdictions other

growing number of

recognize common law Jani,

action, LaFage N.J.

Case Details

Case Name: Fields v. Legacy Health System

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 21, 2005

Citation: 413 F.3d 943

Docket Number: 03-35386, 03-35587

Court Abbreviation: 9th Cir.