Sondra L. McKenna and James R. McKenna v. Ortho Pharmaceutical Corporation

ADAMS, and Before HUNTER HIGGIN- Judges. BOTHAM, Circuit COURT THE OPINION OF ADAMS, Judge. Circuit trial, presentation prior After but the district court in jury, case to the defendants’ mo- granted case diversity ground on the for verdict tion a directed recovery. we Because law barred review of the persuaded by a careful are law, as as well other rele- Ohio decisional sources, vant limi- its statute of construe Ohio would not recovery in this preclude tations so toas case, we reverse.

I. brought this McKenna James and Sondra and misrepresentation, negligence, suit for Pharmaceu- liability against Ortho products plaintiffs (Ortho). The Corporation tical charged severe suffered Mrs. McKenna disability personal permanent and Ortho-Novum, oral a result ingesting and marketed contraceptive manufactured birth of Following the Ortho. child, Mrs. McKenna be- McKennas’ second January using gan Ortho-Novum both Or- from receiving after assurances per- and from her published tho’s brochure drug was and sonal safe physician, that In Mrs. posed no risks. serious severe headaches and developed McKenna experienced attacks of also two transient hospitalized in 1969 for a ischemia. While involving stomach ailment vessel wall dam- Evans, Evans, (argued), Ivory John E. Jr. age, Mrs. was told that she had McKenna Pa., Evans, Pittsburgh, appellants. & high which was characteriz- pressure, blood ed In June Mrs. hypertension. Arm- Carney, Thorp, G. Daniel Reed & contracep- oral using McKenna ceased Pa., Dobbins, Pittsburgh, David F. strong, later, tives. in March she years Three Patterson, New Belknap, Tyler, Webb & cerebrovascular catastrophic suffered a Sparks (argued), W. City, York Robert J., Johnson, Brunswick, severely perma- New N. stroke that left her Johnson & for appellee. nently paralyzed.1 arms; complaint alleged ralysis legs bilateral facial that as a direct result of both Ortho-Novum, vision; paralysis; impairment of her use of Mrs. McKenna double following permanent injuries: pa suffered the thereafter, trial, nine months in close of year One submission of the 1973, McKennas commenced November jury, granted case to the court the district Pennsylvania in a state court this action Ortho’s motion for a directed verdict on the trespass.2 for a writ of praecipe On Or- ground that the action was barred under motion, tho’s the suit removed to the Ohio’s statute of The district limitations. in Pittsburgh, where it federal district began court concluded that the Ohio statute ultimately plaintiffs was tried. run, latest, when Mrs. in 1969 injuries claimed that Mrs. McKenna’s were developed high blood pressure, McKenna Ortho-Novum; by ingestion caused her according- that the cause of action was that Mrs. McKenna relied on Ortho’s false ly barred because it was filed more than product’s safety assurances about time. It is this years two after that conclu- Ortho-Novum; deciding to use that Ortho sion that here. we review have known that knew or should these false; statements were and that Ortho-No- II. posed vum a risk of serious harm to its Although Pennsylvania courts ordi users. narily apply the statute of limitations trial, Prior to the district denied state,3 forum Pennsylvania “borrowing summary judgment for on Ortho’s motion statute” effect when the case was tried ground genuine issue of material provided statutory exception to this rule. fact existed as to whether the McKennas It declared: knew, known, or should have reasonably fully When a cause of action has been more than years prior two to the com- by barred the law of state in which it suit, mencement of the that Mrs. McKen- arose, complete such bar de- shall be a injuries ingestion na’s resulted from the fense to an in any action thereon During Ortho-Novum. the four weeks of courts of this Commonwealth.4 trial, jury the McKennas expert introduced court, granting The district Ortho’s mo- witnesses who testified that the cerebrovas- verdict, tion reasoned that for a directed cular stroke was ultimate result of ei- Pennsylvania only statute borrowed not damage high pres- ther vessel-wall blood sure, period, but conditions, two-year limitations also that both of these governing well as Ohio’s law the determination the headaches and transient ische- attacks, mia by were caused Mrs. when the cause of action arises. In their McKen- ingestion na’s appeal, Ortho-Novum. At the McKennas contend that this was speech; impairment Lines, Inc., 1, hearing; inju (1964), internal 416 Pa. A.2d 796 ries; system. governs shock and to her nervous substantive law of Ohio this action. 2. The district court noted that inasmuch as the 12, (repealed 1978). tit. 39§ Pa.Stat.Ann. plaintiffs’ Pittsburgh attorney, counsel is a “it provision by pro- replaced This a similar was brought Pennsyl- was natural” that suit was provides vision which that: vania. (b) period limitation General rule —The applicable accruing Tompkins, 3. Under the doctrine of Erie R. a claim outside this R. 64, (1938), provided 304 U.S. 58 S.Ct. shall L.Ed. 1188 Commonwealth be either exercising diversity jurisdiction prescribed by a federal court place the law of the where must state rather by than federal decisional accrued or the law of this claim Com- questions law to of a monwealth, “substantive” character. whichever first bars the claim. applies, In order to determine which state’s law (eff. § Pa.Const.Stat.Ann. June a federal court must ascertain the substantive applied question by law that would be to the Section 39 in this ac- remains determinative located, court of the state in which it is Klaxon tion, savings pro- because of a clause which Co., Mfg. Co. v. Stanton Elec. 313 U.S. vides: (1943), S.Ct. 85 L.Ed. 1477 in this case fully No cause of action barred Pennsylvania. signifi- Inasmuch as all of the effective date of this Act shall be revised pertinent cant events to this action occurred in reason of the enactment of Act. this Ohio, disputed it is not that the cause of action 9, 1976, July 25(b), Act of P.L. No. § Pennsylvania’s arose in Ohio and that under reprinted in 42 Pa.Cons.Stat.Ann. note. rules, conflict of law see Griffith v. United Air

error; governed by Pennsyl- determination is to be though that even they argue “borrows” the law of vania law.”8 statute Pennsylvania length applicable regarding offered for justification The crux of the when that period, limitations Trucks is the as- Mack construction of begins to run must be when the cause sertion that we determined Pennsylva- Ohio but determined of action case references arose nia law. But, Pennsylvania as the most recent law. out, argument addressing points their decision this issue premise The McKennas Pennsylva- “Mack Trucks relied not prior decision in Mack on this Court’s juris- on cases from other Trucks, nia cases also Bendix-Westinghouse Inc. v. Auto- suggestion Nor there any dictions.”9 Company.5 Air Brake In Mack motive in Mack Trucks that Florida would have Trucks, to decide when an we were asked running commenced the of the statute of arose, indemnity purpose action for a from when limitations at time different determining Pennsylvania whether the Pennsylvania would have. Inasmuch as to that “borrowing applicable statute” was issue, Mack Trucks did not even discuss this action. “familiar rule” that a Noting the controlling we do not find that decision “begins statute of limitations to run when here. arises, by determined cause of action as significant the occurrence of the final event rather, persuaded, We are suable,” necessary to we make the claim apparent purpose Pennsylvania “bor held where as well that a “cause arises rowing requires statute” us to look to the when event significant the final is law of the state where the cause action essential to a suable claim occurs.”6 Be- prescribed arose to determine not significant cause event essential to the final point of limitations but also the at in indemnity happened the action for Flori- By which the to run. its begins statute da, we concluded that Florida’s statute of terms, plain “borrowing statute” bars a applied. suing Pennsylvania tiff from in “when [the] application Pennsyl- Mack Trucks’ fully by barred cause of action has been statute,” “borrowing vania the McKennas which it laws of the state ... in claim, depended upon the ascertainment of view, . . essential arose ..” In our arose, where the cause of which in action question posed “borrowing under the stat- turn prior was based on the determination question is ute” is whether the action of when it accrued. In support of this of the state in which precluded by the laws interpretation, rely the McKennas on Prince accrued, question and the answer to that University Pennsylva- Trustees of the also must on the law of the state be based nia,7 held, which on the basis of Mack in arose. To do otherwise which the claim Trucks, “borrowing statute” ap- “fully action which is might well revive an plies two “only upon satisfaction of contin- Ac- barred the laws” of another state. gencies: (1) the cause action must arise cordingly, because the McKennas’ cause state; (2) another the cause of action Ohio, look to must action arose we totally must be barred the law of that law to statute of determine when Ohio’s analysis,” state. Under the Mack Truck run. And the limitations commenced to concluded, then, district court “satisfaction of the decision, whether question for is contingency by finding first is determined statute of limitations commenced to knew, arose, where the cause run to the Mrs. McKenna of action date (3d 1966). F.Supp. Cir. 8. 282 at F.2d. Laughlin Corp. 6. 372 F.2d at 20. Steel v. Johns-Man Jones & (W.D.Pa. Corp., F.Supp. ville Sales F.Supp. (E.D.Pa.1968). 7. 282 reasonably expression should have a number of sources. It is injuries her were caused this working body which a feder- of rules to Ortho-Novum.10 al court must look in order to ascertain the III. governs particular state law that in a case. governs law question Given In those few high- instances which the decision, the task remains to determine est state recently spoken court has pertinent what Ohio law is and then to precise question particular issue in a it to this apply controversy. setting, duty federal court of how a federal court is to ascertain and apply easily determine and state law is met. apply state particular decisional law to a all, After highest State’s court is the “[t]he provoked case has considerable comment best authority on its own law.”14 from courts and commentators alike.11 As problem when, of ascertainment arises noted, some the concept that a federal here, highest yet state court has not court must determine state law is some- authoritatively addressed the critical issue. misleading what inasmuch implies as it opinions Recent of this Court make clear existence of readily accessible and easily disposition that our cases of such must be understood body of state On law.12 governed prediction of how state’s contrary, the law frequently “dynamic highest rather it con- than court would decide were consists static,”13 working rules, of a body of Although find fronted with the some problem.15 applicable they 10. The Ohio statute of limitations then federal authorities must what Sondra giving ‘proper McKenna’s claim is Ohio Rev.Code find to be the state law after 1954), (Page provides: Ann. regard’ rulings § 2305.10 which to relevant of other courts of the expressly bodily injury injuring per- An action for state.” Id. The Erie Court intended property governed brought by sonal shall be that federal within two courts were to be years by after the cause thereof arose. law of each state whether it “be declared its pertinent legislature by highest statute for James McKenna’s de- its court in a deci- 64, rivative claim is Ohio 78, 817, 822, Rev.Code Ann. § 2305.09 sion.” 304 U.S. 58 S.Ct. 82 (Page 1954), provides part: (1938). L.Ed. 1188 any following An action for of the causes brought years shall within four be after the g., Properties, 15. E. Becker v. Interstate 569 cause thereof accrued: 1203, (3d 1977) (“Inasmuch F.2d Cir. (D) rights plain- For an Jersey squarely point, no New important are on it is cases arising tiff not on contract nor enumerated in disposition to make of clear that our sections ... [other] of the Revised governed by prediction this case must be a of Code. Jersey what a New do if confront- court would us.”); ed with the facts Huddell v. Le- before See, g., Bosch, e. Commissioner v. Estate of vin, 726, (3d 1976) (“This 537 F.2d Cir. 456, 387 U.S. 87 S.Ct. 18 L.Ed.2d 886 appeal requires predict us to how New (1967); Polygraphic Bernhardt v. Co. of Ameri- Jersey Supreme Court would react when ca, 350 U.S. 76 S.Ct. 100 L.Ed. 199 presented questions with novel and difficult of (1955); Properties, Becker v. Interstate law.”); Rothwell, Inc., George tort Wise v. C. (3rd 1977); Wright, F.2d 1203 Cir. C. Law of (3d (“We 1974) 496 F.2d Cir. are Courts, (3d 1976); Federal at 267-71 ed. apply bound to the standard of care the Dela- Practice, 0.309, para. 1A Moore’s Federal 3323- Supreme ware Court would were it faced (2d ed.) (1978 Supp.); 3330 Kurland, 73-74 id. -79 us.”). position with the issue now before Our Frankfurter, Supreme Mr. Justice accepted by majori- is in accord with the rule Cases, Diversity Court and the Erie Doctrine ty g., of the other Note, Circuits. E. Soo Line R. Co. (1957); Interpre- 67 Yale L.J. 187 Federal Corp., (8th v. Fruehauf Argument 547 F.2d 1365 Expand- tation of Cir. State Law—An for 1977); Company Corp., Scope Inquiry, Gates Rubber (1969). ed v. USM of 53 Minn.L.Rev. 806 (7th 1975); 508 F.2d 603 Cir. Warren Bros. Co. See, g., Note, Interpretation e. Federal Corp., (1st v. Cardi 471 F.2d 1304 Cir. Argument Expanded Scope State Law—An regrettable yet It is that Ohio has not estab- Inquiry, (1969). 53 Minn.L.Rev. procedure lished a certification that would en- able this Court to obtain a answer definitive Id. the crucial in this case from the Ohio Bosch, Supreme Supreme 14. Commissioner v. Estate of 387 U.S. Court. The United States 456, 465, 1776, 1783, expressed S.Ct. approval 18 L.Ed.2d 886 Court has procedure. its of such by Schein, “If there be no decision that Court Lehman 416 U.S. Bros. v. tribu- indicia of how the state with reliable assignment spec- characterized gazing, question.19 nonetheless crystal-ball might particular

ulative or nal rule on may which we not decline. “enjoys is a task state court highest Because ascertaining some decision latitude of law, An accurate forecast dispute even applicable particular law to a highest as it would its expressed 20how- point,” where there dicta in may be court, of all rele requires an examination ever, circumspect should be a federal court vant that state’s law in order to sources of judgment concern- its own surrendering would inform its isolate those factors that is on account what law ing that must be primary decision. The source Wright Alan dicta. Professor Charles As course, law of analyzed of is the decisional written, on the charac- depends has “much In the absence of Supreme Court. somewhat less Of ter of the dictum.”21 decisions authority directly point, on of what prognostication to a importance provide useful analogous that court in cases decisions of court will do are highest state probable disposi indications of the court’s other federal courts. state courts and lower of law. It is particular question tion of a “proper note, however, should be accorded important predic that our decisions Such course, a mere reci ef- product tion “cannot be the not conclusive regard” of previously tation of decided cases.”16 In Thus, held Court has fect.22 law, determining state a federal tribunal lower state although the of a decision “danger” should be careful to avoid weight some be ‘attributed court “should a more giving “a state court decision bind controlling the decision [is] ’ ing effect than a court of that state would highest court . where the Rather, under similar circumstances.”17 point. . spoken has not State precedents relevant state must be scruti Thus, conditions, au- federal under some policies broad eye nized with an toward the even an inter- thority may not be bound adjudications, informed those and to ruling.”23 appellate mediate state they the doctrinal trends which evince.18 may courts consider Additionally, federal treatises,24 the Restatement scholarly high dicta the state’s Considered Law,25 germane law review articles26 est court may provide court also a federal Bosch, 386, 390-91, 394-95,- 1741, 1743-44, 387 v. Estate 22. See Commissioner 94 S.Ct. 1776, 1785, 456, 471, 46, (1974). 18 L.Ed.2d U.S. 87 40 L.Ed.2d S.Ct. 215 1745— (1951). 886 g., Properties, 569 16. E. Becker v. Interstate 1203, (3d 1977). F.2d 1205-06 Cir. Travelers, (quoting King 333 v. Order of 23. Id. 492-93, 153, 160-61, 488, L.Ed. 92 U.S. 68 S.Ct. Practice, 0.307, para. 17. 1A Moore’s at Federal omitted). (1948)), (footnotes Unlike 608 (2d 1979). 3077 ed. dissent, persuaded state I am not that the lower on and federal court decisions relied court Properties, v. 569 F.2d 18. Becker Interstate 672, defendant, dissenting opinion at see 1203, Choi, (3d 1977); v. 1206 Cir. Medvecz definitively specifically re- either address or 1221, (3d 1977). 569 F.2d 1226 n. 14 Cir. at issue here. solve Lines, 293, 19. Nolan Air v. Transocean 365 U.S. 483, Works, 555, Stanley (1961). F.2d 488 81 S.Ct. 5 24. Patch v. 448 L.Ed.2d 571 1971). (2d Cir. 0.307, Practice, para. 20. 1A Moore’s Federal at (2d 1979). 3097 ed. Co., Id.; Philip 328 F.2d 3 25. Ross v. Morris & 1964). (8th Cir. Courts, 58, Wright, 21. C. Law of Federal at (3d may 1976) (“Mere 270 be entitled ed. obiter 26. Southern Farm Bureau Cas. v. Ins. Co. weight, carefully to little while a considered Mitchell, 485, 1963); (8th 312 F.2d 497 Cir. court, though statement the state technical- Lillo, 56, (N.D.Iowa F.Supp. Wendt v. 182 60 dictum, ly carry great weight, may must 1960). even, any conflicting in the absence of indica- state, regarded tion the law of the be as conclusive.”) (footnotes omitted). seems, —particularly, of schools within being the federal court by deprived of the predicted.27 the state whose law is to be flexibility that a state court could reason- ably expected to show. sum, attempting In a federal court to forecast state law must consider relevant IV. precedents, decisions, state analogous con support In its conclusion that dicta, works, scholarly sidered and any oth Ohio’s statutes of limitation bar the McKen er reliable tending convincingly data relied, actions, does nas’ court the district show highest how the in the state Trip here, primarily on the dissent would decide the issue at hand. The rule i,31 decided nine years ago by Erie calls on us to apply state law and not, dispute Court. The central in that notes, as the dissent participate “to in an case concerned the date on which a cause of effort to change merely it”28 because we malpractice for action medical accrued. time, doubt its soundness. At the same Expressly following the rule announced in a however, blind adherence prece decisions,32 series of held that evaluating dents “without decision[s] the cause of action came into existence at light other relevant data as to what latest, at the time the physician-patient is, the state law injustice will result terminated, relationship and not when the perversion of the state law which the plaintiff discovered the injury. federal court apply.”29 sets out to As this Court has declared:30 concept “termination of treatment”

A diversity litigant should not be drawn developed very early Ohio law33 as the federal forum the prospect of a exception to the traditional rule that more favorable than outcome he could statutes of to run limitation commenced expect in the state courts. But neither the time an individual sustained penalized should he be for his choice of the result of the act of another.34 tortious Note, 1, Interpretation Federal of State Law— St.2d 201 n. 290 N.E.2d 1n. Argument Expanded Scope Inquiry, (1973). An for (1976). 53 Minn.L.Rev. 806 Tucker, See Gillette 67 Ohio St. (1902). N.E. 865 Corp., 28. Tarr v. Manchester Ins. 544 F.2d (1st 1978); majority opinion Cir. at 11. See, Fee, g. e. Fee’s Administrator v. 10 Ohio (1891) (action trespass property). Practice, 0.309, para. 29. 1A Moore’s Federal constituting In the usual case—when the act (2d ed. negligence inju- causes direct and immediate ry action accrues and the of limita- —the Properties, 30. Becker v. Interstate 569 F.2d tions runs from the date of the act. When the (1977). negligent injurious only act in its conse- quences, however, Ohio courts have held that 31. 25 Ohio St.2d 267 N.E.2d 419 the cause accrues and limitations run the 164, 419, injury 25 Ohio St.2d at 267 consequential N.E.2d at from the time that some following Cambell, DeLong damage Yager, v. 157 Ohio St. or In v. manifests itself. Cook (1952); Santee, (1968), 104 177 App.2d N.E.2d Bowers v. 99 13 Ohio 326 for (1919); example, Ohio syllabus St. 124 N.E. 238 Gillette v. the that where the stated Tucker, (1902). negligent contemporaneous 67 Ohio St. 65 N.E. 865 in- act “causes no jury damage patient Supreme or the forces set to the The Ohio Court’s consideration of by proximately in application motion cause “discovery such violation the of the rule” to stat- injury thereafter, then, damage or . . solely utes of limitations thus far has occurred pertain- the cause and the statute of limitations in the context of actions for medical mal- ing begin practice to the involving cause of action does not to run Ohio Rev.Code Ann. § 2305.- consequential injury 1954), (Page until the date such or rather than in the of context damage App.2d personal injury first manifests itself.” 13 negligence Ohio actions under Ohio 10-11, 332; Beryl- at (Page 1954). N.E.2d at see Brush Rev.Code Ann. 2305.10 The Ohio Meckley, (6th Supreme noted, lium however, Co. F.2d 797 Cir. Court has that the principle apparently “obtains, This of Ohio law question princi- limitation-of-action ple, majority accords with irrespective the rule: of whether the case is treated belonging rule, as general under R.C. 2305.10 or under R.C. As a omission, the occurrence of an act or Melnyk Clinic, 2305.11.” v. Cleveland 32 Ohio whether it is a breach of contract rule of the adoption traditional and towards It was court ob- designed, the served, approach, the results of the to this According “to avoid harsh rule. discovery by tolling begin the to applicable traditional does not the of statute limitations rule”35 discovers, statute the conclusion of of limitations until or plaintiff actually run the until relationship. the Al- physician-patient diligence with due should though represents a “marked this doctrine alleged. negligence the rule,” general “af- departure from the it Although the court’s examination injury fords where the little relief cases “there much to it that persuaded cases developmental long is one requires which discovery adoption the the recommend dangerous period becoming before and dis- “reluc- majority nonetheless bare rule,”39 cases, In such the termina- coverable.”36 “the courts of Ohio tantly conclud[ed]” the tion extends before exception the not decree such should adoption.”40 run, begins statute to of limitations “but refusing adopt to justification sole does so logical a factor which bears no should rule was that such action discovery to the relationship incurred.”37 legislature. The court left to It with which the was this kind issue [adopt “convinced to Court was confronted place would obvious rule] [it] Wyler. plaintiff alleged there that im- position having only legis- untenable not proper physician treatment her ultimate- lated, directly so in the having but of done ly of asceptic resulted in the manifestation in- opposite legislative face clear of a necrosis, necessitating replacement of 41 Referring legislature’s fail- tent.” hip her and the removal of her subsequent by legisla- ure rule adopt leg. plaintiff failed to discover Because tion, “In consideration the court concluded: the alleged negligence year within a after repeated of the obvious and disinclination she left care of physician, applica- her its mal- Assembly amend General tion of rule either traditional or limitations, practice we are com- statute of exception “termination treatment” former pelled to adhere to our decisions would prevent Wyler majority what the judicially from and refrain itself termed “the unconscionable result clearly so been has adopting injured right recovery party’s legislatively rejected.”42 can be barred statute limitations pro- Notwithstanding this extensive before of its is even aware exist- [s]he result, position, this ence.” nouncement of the court’s Troubled the Ohio jurisdic- following year em- during examined the laws of various same court tions rule growing away ployed and the trend from the inju- duty, whereby consequential or of first sustains a direct manifestation one injury, slight, ry damage arbitrary, however the statute of starts somewhat seems running right against appears appli- to main- nonetheless consistent with the tain if an action. It nominal principles is sufficient law. cable damages are for the recoverable breach wrong, for the it is St.2d at 421. where that is case 35. 25 Ohio at 267 N.E.2d unimportant the actual or substantial damage is not or does not occur discovered Id. until later. 51 Am.Jur.2d Actions Limitation of Id. case, present In the the district court deter- 38. Id. consequential damage mined re- sulting ingestion from Mrs. McKenna’s of Or- 170-71, 39. 267 at 423. 25 Ohio St.2d at N.E.2d itself, latest, tho-Novum manifested in at the developed hyperten- 1969 when Mrs. McKénna 40. Id. Although sion. the of classification this devel- opment, rather than occurrence of Mrs. Id. McKenna’s transient ciating ischemia attacks or excru- or, matter, headaches for that the oc- 1972, 172, currence of the stroke in 267 at 424. cerebrovascular 25 Ohio St.2d at N.E.2d Melnyk’s implicit rejection The plaintiff Wyler there al- of Cleveland Clinic43 only legislature the state rationale —that employed by leged physician decide whether to may properly left a metallic for- negligently Clinic had appears justified. well As discovery his abdo- sponge a nonabsorbent in ceps and rule — legisla- alleged evidence of the intent failed to though plaintiff men. Even rule, discovery ture to eschew the more than one negligence discover the until failure to enact legislature’s referred to the year physician, after he left the care of the court’s deci- legislation modifying the to bar his Supreme Court refused of limita- interpreted sions that the statute action, one- applicable and held that Legislative tions for medical malpractice.49 year was tolled “until statute limitations inaction, however, upon weak reed “is a discovers, such time patient determining which to in- legislative lean in diligence exercise of reasonable should have 50 A prod- tent.” statute limitations is a negligent act.”44 legislation, judiciary’s uct of but it is the Although Melnyk great took interpret enforce such an enact- task to case, pains, as does in this the dissent ment. here is The Ohio statute distinguish from on the phrased general requires only terms and did ground that the former not involve the bodily injury that an action for “shall be “problems faced in the defense of a ‘stale’ years after the brought within two cause claim for medical the dis- legislature thereof arose.”51 The left unre- malpractice,”45 tinction, as a recent commentator on Ohio when a cause of action arises and solved argued, law has “in essence is an artificial And, commences to run. when the statute 46 Indeed, took Wyler expressly one.” note Ohio, kinds of determinations have these adopting of the fact that courts the dis- product “judicial inter- always been covery being entirely doctrine viewed it “as pretation, legislative promulgation.”52 not consistent with the policy of the statute of Consequently, application of the ”47 to prevent ‘stale claims.’ way rule the facts this case no holding declining of Wyler adopt legis- authority intrudes on the of the state depended rule not at all on the Indeed, lature. selection of the ter- claims, policy discouraging stale sole- exception represented mination ly upon the court’s reluctance to contravene departure rule, marked from the traditional what it policy then believed to be the judicial as to when but also a determination legislature. embracing By the dis- Melnyk’s a cause of action choice accrues. therefore, covery Melnyk, rule in rule, Ohio of the in the absence at least “completely legislature abandoned expression by prohibit- of an jus- rationale which served as the basis and ing adoption, appears such an therefore ful- decision, tification for the Wyler namely, responsibility with court’s ly compatible legislative prerogative comply legislative to ascertain and with in- area.”48 tention.53 198, 1954). (1972). (Page

43. 32 Ohio St.2d 290 N.E.2d 916 51. Ohio Rev.Code Ann. 2305.10 § provision pertinent to Mr. McKenna’s de- 201, 44. 32 Ohio St.2d at 290 N.E.2d at 918. similarly phrased, rivative claim is but states brought within four such actions “shall be 200, 45. 32 Ohio St.2d at at 917. years after the occurred . ..” cause thereof (Page Ohio Rev.Code Ann. 2305.09 (1973). 46. 6 Akron L.Rev. (1973). 52. 6 Akron L.Rev. 47. 25 Ohio St.2d at 267 N.E.2d at 423. legislature that the 53. A further indication did (1973). 48. 6 Akron L.Rev. preclude judicial adoption not intend to discovery provided the recent doctrine was 171-72, 49. 25 Ohio St.2d at 267 N.E.2d malpractice statute. amendment of the medical 423-24. year though allows a one Even that statute still Branner, 307, 311, actions, Berry judi- Or. 421 P.2d of limitations for such ciary’s determining role in when a cause of Moreover, federal Supreme faithfully Court that courts must adhere Ohio Wyler its decision in to state substantive law in non-federal mat- Melnyk distinguished But, empha- of when a ters. as have speaking question to the commentators only sized, arises, such adherence should be wise and action and not to the deter- cause of only noted running discerning. of the stat- This has mination whether the reason, diversity is, recently that “while a federal for some ute of limitations wholly indepen- that the a proceeded It then to hold must not fashion tolled.54 which to deter- dent with of limitations on federal standard running of the statute like- right, was tolled until mine matters of substantive Melnyk’s cause of action apply- exer- its role as time or wise must not conceive of such as he law to the case at diligence ing should have dis- the state decisional cise of reasonable covered, act, his hand in a narrow and mechanical fash- negligent though even Rather, accrued, Wyler, of action under at the ion.”56 a federal court must “be cause rela- sensitive to the doctrinal trends of the state patient-physician termination of the holding applies, policies in whose law it and the which tionship. analysis, On this adjudications by the state only determines when the McKennas’ inform the n ' accrued; inapposite action it is courts.”57 cause of whether was tolled the action view, Supreme In our the Ohio Court’s until time as the McKennas could such only decision in abandoned injuries know how Mrs. McKenna’s oc- justification proffered opposition sole for its curred. adoption claimed, nonetheless, rule, “Melnyk recognition It is that but also manifested a does not overrule and Wyler,” “merely approach alone avoids the harsh carves out a very specific inequitable applying and narrow ex- results of the tradi- ception” when, “Certainly the termination rule tional rule in such cases. a fed- case, surgical sitting instruments are left in eral court in diversity should not reason, patient’s a the dis- body. For this follow mechanically precedent blindly and sent would not rule to apply principles of stare decisis when it view, case. In its appears corresponding circumstances of this state court we improperly modifying adjust are “decadent” its common law to would meet “unenlightened” doctrine of state law changing scrutiny conditions.”58 A fair simply disagree precedents, because we with it. with eye On relevant Ohio an however, contrary, fully recognize principles policies underly- we our toward the them, accurately apply perti- responsibility ing strongly indicates Ohio Indeed, dispute nent Ohio law. we do not extend the Supreme Court would longstanding “syllabus action 54. Under Ohio arises and when the limitations rule,” begins implicitly recognized by syllabus to run is a new which is stated provision expressly provides per opinion represents that “in no in an curiam an accu- any against physi- event shall medical claim rate and authoritative of law statement brought years g., cian ... more than four Court. E. In State ex rel. constituting 191, 200, Phillips, after the act or al- omission St. Canada leged malpractice (1958). occurred.” Ohio Rev.Code 2305.11(B) (Page Supp.1978). Ann. § Moreover, deciding Dissenting opinion typescript without the issue the at 670. Melnyk suggested court in a result that as Constitution, amendment to the Ohio Choi, 1221, 1226 56. Medvecz 569 F.2d may statutes of limitation now “become (1977). Supreme] the sole demesne of [Ohio Court.” 32 Ohio St.2d n. at 200 290 N.E.2d Properties, 569 F.2d 57. Becker v. Interstate amended, IV, at n. 3. As Article Section 5(B) provides of the Ohio Constitution now part: supreme prescribe “The court shall rules J., (Hunter, dissenting). Id. 1215-16 governing practice procedure in all courts state, abridge, which rules shall not en- large modify any rights.” substantive (1972) 32 Ohio St.2d N.E.2d 916 to type to include the Melnyk rule set forth in present injury injury action here. action personal type personal of include the typescript present opinion here.” (Majority sitting in a federal court task of 666-667). requested the Mc- panel difficult, for it diversity often must for- is petition. file to Ortho’s Kennas to an answer that of expertise sake its and assume own light in parties’ briefs reviewing After the Required we are to foreign state. 2305.10, we adhere to the amendment § Supreme Court would predict how the Ohio position. original our however, case, decide we believe present applica- that the hold that the Court would question, Prior in the amendment in this ble of limitation case were statutes required an action for bodily 2305.10 that § knew, tolled McKennas or until the years two injury brought “shall be within diligence should have exercise of reasonable Regarding arose.” after the cause thereof Mrs. cause of McKenna’s arises, of action when a cause judg- we reverse the injuries. Accordingly, silent. In however the statute was amend- court, ment and remand for of the district legislature specifical- ing provision, this further this proceedings consistent with stipulated a cause of action ly that for opinion. by exposure to bodily caused asbestos upon or to chromium arises the date on OPINION SUR THE SUPPLEMENTAL plaintiff or is informed reason- PETITION DENIAL OF THE FOR he should aware that ably have become REHEARING injured by exposure. ADAMS, Judge. Circuit this amendment argues Ortho that in Shortly opinions after this matter pronounce a represents legislative clear filed, were for Counsel Ortho Pharmaceuti- ment that courts are to “Ohio Corporation brought

cal attention of rule cate in the two enumerated the Court the fact that the Governor of gories Invoking of cases other.” and none 13, 1980, signed Ohio on March into law a precept unius est expressio exclusio bill amending 2305.10 of the Ohio Rev. § alterius, Jurispru Ortho on 50 Ohio relies states, Code. still While section contention support dence 2d 188 to its § before, for bodily injury action “[a]n by the specific that in Ohio the enumeration injuring personal property brought shall be implies legislature of items in a statute within two after years the cause thereof concludes, exclusion of others. then Ortho arose,” provides the amendment now fur- effect, specifically legislature, ther that: postponing the when a cause action time section, For purposes of this cause involving injury resulting arises cases bodily injury by expo- action for caused chromium, thereby pre from asbestos or sure any to asbestos or to chromium in discovery rule application of the cluded upon its the date on chemical forms arises cases. all other plaintiff by compe- which the is informed authority tent that he medical has been following immediately As the section injured exposure, upon such out, however, points relied on Ortho which, by date on the exercise of reasona- maxim unius est exclusio ‘expressio “[t]he ble diligence, he should become application alterius’ is of universal injured aware that he had been use,” caution should in its be exercised id. exposure, whichever date occurs first. view, 189 at 166-67. In our cautious more Relying amendment, reasonable construction primarily this Or- amendment, tho as the one we believe petition rehearing submitted a well embrace, would provision removes the the Ohio claiming that judicial basis it was preclude for our decision that “the Ohio not meant to Su- preme appropri- adoption Court would extend the rule Clinic, rule set forth in Adoption Cleveland ate circumstances. con- HIGGINBOTHAM, Jr., would trary effectively construction abro- A. LEON Circuit gate principle, Judge, dissenting. that court’s well-established Tripi, expressly reaffirmed respect my due to I colleagues, With all Ohio (1971), St.2d 267 N.E.2d 419 that a they continuing believe that err in their cause of action for medical malpractice the adherence to their view on roles arises, latest, at the when the physician-pa- judicial legislative and branches tient relationship terminates. We believe the alteration of Ohio’s statute limita- the Ohio Supreme Court would hold that if earlier, my tions. As I indicated it is belief intended, legislature had passage its past the Ohio courts have in the and amendment, of this not merely to extend will in the future adhere to the view that greater protection to legislative pre- victims of asbestos “statutes of limitation are a rogative operation and their and effect are poisoning chromium but at the same upon important legislative policy.” based deprive time to mal- victims of medical Weyant, Wetzel v. 41 Ohio St.2d practice protection they currently enjoy Supreme under the Ohio Court’s deci- law,

sional expressly would have done so majority, As is noted the Ortho by implication. not Corporation brought Pharmaceutical to the legislation attention this court Even if the amendment to 2305.10 § limitations, amends Ohio’s statute by indicating specifically when a does— Rev.Code, 2305.10 Ohio to include a dis- § cause of action arises cases of asbestos or covery period types injury, for two those chromium poisoning effectively establish — “by exposure caused to asbestos or to chro- just when a cause of action must arise in all legislation mium.” This is irreconcilable cases, however, other that would not affect clearly with the It evi- panel’s rationale. our accepted decision here. For we legislature dences an intention of the Ohio district court’s determination reject general discovery rule that McKennas’ causes of action arose at encompass plaintiffs’ would suit and to time consequential injury resulted from continue their traditional role the area of ingestion Mrs. McKenna’s of Ortho-Novum. statutes of limitation. Nevertheless, we held that the Ohio Su- agree majority I with the preme applica- Court would decide that the blindly not follow the Supreme Court would ble statutes of limitation were tolled until alterius; expressio exclusio unius est rule of knew, the McKenna’s the exercise of however, I it would be followed believe that reasonable diligence should have First, Tripi, here. 25 Ohio St.2d injuries. cause of Mrs. McKenna’s In so (1971), 267 N.E.2d 419 where Ohio’s doing, expressly we followed the distinction Supreme rejected general discovery Court Court in Mel- drawn Supreme rule, expressio implicit application is an nyk when a cause of question between the unius est exclusio alterius. following action arises and the determination whether passage Supreme indicates that the Ohio the statute of may, limitations for some rule, would to the adverse reason, be tolled on such action. Since plaintiffs, upon when it reflected the new issue, implicates amendment at if it even amendment 2305.10 of the Ohio Rev. when a cause of action for Code. arises, bodily injury pills from birth control It should although also be noted that does not affect the determination whether refused to Assembly General has the statute of respecting adopt discovery rule for medical mal- tolled, action may be we adhere to our cases, practice created it has nevertheless opinion. general opera- certain exceptions to the tion of various other statutes of limita- Judge joins Hunter in this opinion. tion. Second, I 267 N.E.2d at 423. believe

Wyler, join cannot because the Ohio Supreme them consider that Ohio’s Court would adopted Court has not and would now not Assembly adopt modern view on of the Ohio General the members gener- sign capable drafting no perfectly cases. I see malpractice medical al statute and the court would withdrawing from its views Ohio is would have Assembly hold that General malpractice relevant medical doctrines general done so had it felt that a more judge distinguished to this trial case. rule was I note that desirable. patiently, was who tried case so stat- Assembly general has had General plight of Mrs. McKen- unsympathetic past utes to it in the has presented na; re- yet being he is my from view Wyler adopt chosen not to them. v. See be- wrong he versed —not because —but (describing N.E.2d at House Tripi, 267 423 unenlight- cause the Ohio law is relevant General Bill No. introduced in the 101st ened. provided which would have a Assembly, respect, majority With I submit that the cases). malpractice in all discovery archaic) disregards (though current legislative doctrine announces a rule of that majority’s argument and law adopt. extends to the issue of Ohio should In 1971 the Su- prerogative Ohio a preme firmly resolutely rejected “when” statute starts to run and to Court and is semantic simply Wyler Tripi, whether it “tolled” is a rule. v. Ohio discovery key one. The issue here is which branch of N.E.2d 419 I St.2d Because government plain- whether these decides conclude that the Ohio timely. relationship decision, tiffs’ suit Unlike the Tripi would to the v. Wyler adhere many appellate between courts and I must dissent. legislatures, courts respective their the Ohio B. have frequently more deferred to Ohio long plain- Ohio held that the courts type. Assembly General in cases of this On tortious act tiff’s to discover the inability they I believe would also defer record run- has no relevance defendant legislature to and so should the the Ohio statute of ning applicable limitations. Appeals Court of for the United States Schoonmaker, v. g., E. Kerns Ohio Third Circuit.1 (1831) justice acts (negligent for re- Thus, grant petition I would Jurisprudence This peace); 34 2d 536. Ohio the decision and affirm

hearing reaffirmed Su- by doctrine was court. lower Wyler Tripi v. in 1971 preme Court Jr., HIGGINBOTHAM, A. LEON Circuit In malpractice applied to medical actions. dissenting. Judge, rejected explic- the court Wyler Tripi, request plaintiff

it to overrule A. declining the invita- precedent. harsh In tion, recognized that its the court action Although I am colleagues as moved my to could “lead the unconscionable result alleged are tragic effects from Mrs. right recovery to injured party’s ingestion [an] McKenna’s of appellee’s birth con- by the statute of limita- be barred trol pills [would] while I am as convinced as tions is even aware of its exist- before he they are the discovery rule is a humane court relied ence.” 267 at 421. The desirable component of medical mal- justification neither on a law,11 policy for a short practice must respectfully dissent. I rejects discovery In addition to the rule new announced amendment Ortho Corp. majority. Pharmaceutical has forwarded to this Appeals decision a the Court of Gemignani Philadelphia In Phillies National Ohio, Eighth District, Funk, Saultz v. No. 38328 League Club, Inc., F.Supp. Baseball (May 1979), in which refused the court (E.D.Pa.1967), Pennsylvania I held that the dis- discovery extend the rule. This too has failed covery rule tolled the statute of un- limitations persuade majority. merely Saultz is one plaintiff relationship til the learns of the casual of an unbroken line of cases from physician’s injury. between his actions and his Herbert, who also wrote the Justice humanity con- period of nor rejected discovery opinion, the court stated: siderations when it Indeed, “[tjhere is much rule. it noted that negligent . a leaving of adoption of a to recommend the forceps metallic and a nonabsorbent rule on the adopt rule.” It declined during sur- body sponge patient’s inside a ground that of the statute running will toll the gery place

to do so would us in the obvious and of action upon that cause of limitation discovers, position having done so di- patient untenable such time as until rectly opposite in the face of a clear and diligence of reasonable the exercise legislative intent.2 negligent act. should have Id. at 918. 290 N.E.2d In spite explicit of this statement Melnyk Wyler; not overrule does Wyler. It ar- majority declines to follow nar- specific and very merely carves out gues rationale would be instruments surgical when exception: row in a 1980 the Ohio abandoned decision of patient’s body are left Supreme Court and thus it feels free to running of the statute period tolls the I include the rule its decision. court did not limitations. agree. do not None of the materials the Wyler when it the of rationale” “abando[n] me that an aban- majority persuades cites Opinion Majority exception. created this Wyler rationale is in the donment of the at 666. The court held that Typescript, wind, any nor I materials unearthed legis- the the case before it did not disturb foretell event. such an noted Justice Herbert judgment. lative mal- period in most the

The primary majority’s source of the Clinic, balancing of the The practice cases reflected a Melnyk v. Cleveland view is (1972), patients and physicians Ohio interests of St.2d N.E.2d Court, the legislature decision of the decided the had struck Wyler. opinion one In an of year physicians after in favor of because balance although Wyler the also be noted that 2. The court It should stated: Assembly adopt the has refused to General Assembly The General has often considered cases, discovery malpractice rule for medical standing interpretation and left our of R.C. exceptions it has nevertheless created certain 2305.11, Gillette, as announced in Bowers operation general of various other stat- to the utes of limitation. DeLong. Assembly In the 106th General (Cf. Mosby Michael (1965-66),'House Bill introduced. No. 30 was Ill.App.2d Hospital [1964], Reese Assembly (1963-64), In the 105th General 2305.16, 633.) In 2305.15 and R.C. House Bill No. 959 Both was introduced. Assembly provided that the has the General 2305.11, by bills would have amended R.C. person if limitations is tolled the statute of entitled to disability, increasing practice period the limitation for mal- ’ legal bring is under a the action years. to two Neither bill survived person action liable to an or if the scrutiny the of the committee to which it was departs More- from the state. absconds A referred. similar fate befell House Bill No. Assembly over, in the R.C. 2305.09 General 907, which was introduced in the 103rd Gen- specifically “if the rule enacted a Assembly (1959-60); designed eral and was ground trespassing action is for injury under to eliminate for mal- the statute of limitations mines, taking wrongful or for practice. Finally, personal property.” under R.C. significant expression legisla- The most 2305.04, person if to recover is entitled position tive Assembly (1955-56), occurred in the 101st General property, possession but is title or of real years less than three legal disability, limita- statute of under DeLong after this court’s decision in the case. Significantly and intentional- tions is tolled. session, In that Bill House No. 177was intro- ly any statutory provision absent is following language duced to add the to R.C. part knowledge lack on the effect that the 2305.11: injured party malpractice in a medical of action of the malpractice “If the action is for the cause operates delay the commencement malpractice thereof shall not accrue until running of the statute of limitations. is discovered.” (1894), Eichelberger See Townsend rejected by Bill House No. 177was the com- Ohio St. 38 N.E. 207. mittee to which it was referred. 267 N.E.2d at 423. malpractice practice was not discovered until proof in most after the difficulties argued “foreign- that in physician-patient cases. The termination of the rela- objects” plaintiff’s proof case the tolling permitted, was not his tionship. If negligence, once the existence of physician’s be action would barred before his wife’s established, object was irre- foreign was barred, though his was even action arose futable, free to and therefore the court felt negligence. out of the same The court held “foreign include a forty-year-old that it would not disturb its The objects” cases. 290 N.E.2d at 917. Co., Kraut Ry. rule set forth in v. Cleveland did carefully noted that it Melnyk court be- (1936) 132 Ohio 5 N.E.2d 324 St. holding nor Wyler, “need to disturb change cause the legislature had failed to in the affairs of our branch interfere sister rule, although it had recently amended government, rule of order to accord this portions covering code statutes of the law viability we have determined malpractice limitations in medical cases. must have.” Id. at 918. The was Amer decision rendered over following begin- language from the Herbert, dissent of Justice the author of the Melnyk suggests ning opinion further opinions. Justice Cele- reaffirming legislature’s the court argued brezze also dissented and in this authority area. should statute of limitations not run until problems case involved relationship terminat- physician-patient faced in defense of a “stale” claim for ed. He stated: malpractice. fields medical As other case “Justice in this cries out for a reme- science, highly technical and inexact dy. anyone precluded How can from evidence defense of such claims is un- claim a of limita- asserting a statute present. difficult to usually acquire and expires tions which before the Assembly exer- . General [T]he charged How can injury? anyone prerogative in this and en- cised its field administering with responsibility compara- acted a statute of limitation of justice absurdity?” allow such an recognized brief duration. tively 485. N.E.2d at act, but as legislative authority so spite plea, In he was unable of this noted, heretofore did so with an unmis- persuade majority reject of the court to lack takable of enthusiasm. legislative decision. (footnotes omitted). Id. at 917 convinces me that Amer decision The validity of the rationale is not its has abandoned Supreme Ohio Court underscored a decision of the Ohio Su- “interfere decision not to affairs later, preme five years Amer v. Ak- government.” Mel- sister branch [its] [of] 85, Hospital, City ron 47 Ohio St.2d at 918. Further it shows nyk, 290 N.E.2d There the court de- Oregon not the feel that whether or courts legislative on judgment ferred stat- legislative inaction “is a weak reed that utes of limitations. In Amer a husband lean,” Braner, 245 upon Berry which to brought action for loss of consortium 996, 307, (1966), quoted in Or. 421 P.2d alleged malpractice because of an medical 665, Majority Typescript, at Opinion upon his wife. The court held that on Supreme Court has chosen to lean applicable statute “is of limitations it. tolled until termination of the physician-pa- at relationship.” tient 351 N.E.2d C. (em- (quotation syllabus) is from the court’s added).3 phasis argued Finally, majority husband had I am convinced that the necessary that tolling because the mal- decision is reading of the incorrect Majority Opinion, Typescript 3. See 666 n. 54, importance for a discussion of the syllabus. court’s if or federal court deci- counsel wants to test whether will every

because rejected has enlightened sion in Ohio on this have more views on the statute v. Riverside g., Simmons issues, reading, e. of limitations is far better Hospital, App.2d 44 Ohio Methodist issues in the state litigate counsel to those (1975); Woodgeard v. Miami N.E.2d 460 say final courts of Ohio which have the Valley Society Dayton, Hospital 47 Ohio views will be expressed when their recently aff’d (C.P.1975), Misc. N.E.2d 720 repudiated. mem. (Ct.App. Sept. No. C.A. 4772 above I re- expressed For the reasons Smith, 1975); Shrewsbury v. 511 F.2d 1058 spectfully dissent.

(6th 1975), including Cir. those courts that injuries have considered claims for allegedly g., E.

resulting pills. from birth control Laboratories,

Gillan v. Searle Civ. No. C-2- (S.D.Ohio,

77-863 Oct.

D.

The instant case reflects the inherent dis- CORPORATION CAISSON advantage plaintiff making of a the tactical litigate diversity decision to case in a plaintiff’s federal court4 where the core of COMPANY, INGERSOLL-RAND contingent case is upon federal court an- Appellant. ticipating a in the state law doctrine “womb No. 79-1718. time, but whose birth is distant.”5 For we prema- have been asked here to deliver United Appeals, States Court of turely a new of limitations Ohio statute Third Circuit. despite concept doctrine the fact so, expressly rejected, Argued has been Dec. recently by every state and federal court in Ohio.6 I April Decided do not claim the Ohio Court’s views on when the statute of limitations

starts to run in cases such as these are part enlightened modern or But trends. recognize plaintiff stopped originally I4. straint received when the decedent’s filed suit Pennsylvania court, obviously in a car was struck from behind another car travelling p. counsel must have been aware that suits such at least 50 m. h. Here, Huddell, as the instant one viable can be removed to a federal unlike there recent pursuant precedent. district court to 28 But asked to U.S.C. we have been Ohio predict court, Aldisert, through Judge precedent This described recent will be over- that such Levin, (3d Huddell v. 732-33 F.2d Cir. ruled. 1976) (footnote omitted) as a “troublesome case, Judge Learned implicating related context concepts In a somewhat nascent of state tort liability, demonstrating] again Hand stated: im- [and] practicality diversity of the federal forum in the em- Nor is it desirable for a lower court to century.” empha- twentieth This court further exhilarating opportunity of antici- brace the sized: may pating in the womb a doctrine which be distant; law, time, Jersey yet We are to on the New we are but whose birth is specific guidance contrary without the Jersey precedents. of its viable New I conceive that the measure can, appeal requires duty divine, This us what would is to best predict Jersey Supreme how the New appeal before in the case event of an presented Court would react when with novel it. questions Walsh, Specifi- Service, and difficult of tort Spector law. 139 F.2d Motor Inc. v. cally predict Hand, we are to (2d Cir.) (Learned dissenting), how that court would J. liability view remanded, of an automobile manufac- vacated and 323 U.S. S.Ct. design turer for the of a head restraint in a 89 L.Ed. 101 alleged injuries case in which it is that fatal by impact 671-672, against pages supra. were caused the head re- See

Case Details

Case Name: Sondra L. McKenna and James R. McKenna v. Ortho Pharmaceutical Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 17, 1980

Citation: 622 F.2d 657

Docket Number: 78-2567

Court Abbreviation: 3rd Cir.