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McKenna v. Ortho Pharmaceutical Corp.
622 F.2d 657 (1980)
Opinion OF THE COURT
After trial, but prior to the presentation of the case to the jury, the district court in this diversity case granted defendants' motion for a directed verdict on the ground that Ohio law barred recovery. Because we are persuaded by a careful review of the Ohio decisional law, as well as other relevant sources, that the Supreme Court of Ohio would not construe its statute of limitations so as to preclude recovery in this case, we reverse.
I.
James and Sondra McKenna brought this suit for negligence, misrepresentation, and products liability against Ortho Pharmaceutical Corporation (Ortho). The plaintiffs charged that Mrs. McKenna suffered severe personal injury and permanent disability as a result of ingesting Ortho-Novum, an oral contraceptive manufactured and marketed by Ortho. Following the birth of the McKennas' second child, Mrs. McKenna began using Ortho-Novum in January 1965, after receiving assurances both from Ortho's published brochure and from her personal physician, that the drug was safe and posed no serious risks. In 1967, Mrs. McKenna developed severe headaches and also experienced two attacks of transient ischemia. While hospitalized in 1969 for a stomach ailment involving vessel wall damage, Mrs. McKenna was told that she had high blood pressure, which was characterized as hypertension. In June 1969, Mrs. McKenna ceased using the oral contraceptives. Three years later, in March 1972, she suffered a catastrophic cerebrovascular stroke that left her severely and permanently paralyzed.1
One year and nine months thereafter, in November 1973, the McKennas commenced this action in a Pennsylvania state court by a praecipe for a writ of trespass.2 On Ortho's motion, the suit was removed to the federal district court in Pittsburgh, where it was ultimately tried. The plaintiffs claimed that Mrs. McKenna's injuries were caused by her ingestion of Ortho-Novum; that Mrs. McKenna relied on Ortho's false assurances about the product's safety in deciding to use Ortho-Novum; that Ortho knew or should have known that these statements were false; and that Ortho-Novum posed a risk of serious harm to its users.
Prior to trial, the district court denied Ortho's motion for summary judgment on the ground that a genuine issue of material fact existed as to whether the McKennas knew, or reasonably should have known, more than two years prior to the commencement of the suit, that Mrs. McKenna's injuries resulted from the ingestion of Ortho-Novum. During the four weeks of jury trial, the McKennas introduced expert witnesses who testified that the cerebrovascular stroke was the ultimate result of either vessel-wall damage or high blood pressure, and that both of these conditions, as well as the headaches and transient ischemia attacks, were caused by Mrs. McKenna's ingestion of Ortho-Novum. At the close of trial, but prior to submission of the case to the jury, the district court granted Ortho's motion for a directed verdict on the ground that the action was barred under Ohio's statute of limitations. The district court concluded that the Ohio statute began to run, at the latest, in 1969 when Mrs. McKenna developed high blood pressure, and that the cause of action was accordingly barred because it was filed more than two years after that time. It is this conclusion that we review here.
Ortho의 요청에 따라 소송은 연방 법원으로 옮겨졌 습니다. 원고는 McKenna 부인의 부상이 Ortho-Novum 복용으로 인한 것이라고 주장했습니다.
법원은 McKenna가 소송이 시작되기 최소 2년 전부터 부상이 Ortho-Novum의 섭취로 인한 것임을 알았는지 또는 알았어야 했는지에 대한 문제가 존재한다는 이유로 Ortho의 약식 판결 신청을 기각했습니다
그러나 지방 법원은 오하이오의 공소시효를 적용해 따라 Ortho의 직접평결 신청을 승인했습니다. 지방 법원은 늦어도 1969년에 McKenna 부인이 고혈압에 걸렸을 때 2년의 공소시효가 시작 되었으며2년이 넘었기 때문에 소송이 금지되었다고 결론지었습니다.
II.
Although Pennsylvania courts ordinarily apply the statute of limitations of the forum state,3 the Pennsylvania "borrowing statute" in effect when the case was tried provided a statutory exception to this rule. It declared:
When a cause of action has been fully barred by the law of the state in which it arose, such bar shall be a complete defense to an action thereon in any of the courts of this Commonwealth.4
3. Under the doctrine of Erie R. R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), a federal court exercising diversity jurisdiction must apply state rather than federal decisional law to questions of a "substantive" character. In order to determine which state's law applies, a federal court must ascertain the substantive law that would be applied to the question by a court of the state in which it is located, Klaxon Co. v. Stanton Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1943), in this case Pennsylvania. Inasmuch as all of the significant events pertinent to this action occurred in Ohio, it is not disputed that the cause of action arose in Ohio and that under Pennsylvania's conflict of law rules, see Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the substantive law of Ohio governs this action.
The district court, in granting Ortho's motion for a directed verdict, reasoned that the Pennsylvania statute borrowed not only Ohio's two-year limitations period, but also Ohio's law governing the determination when the cause of action arises. In their appeal, the McKennas contend that this was error; they argue that even though the Pennsylvania statute "borrows" the law of Ohio regarding the length of the applicable limitations period, the question when that limitations period begins to run must be determined not by Ohio but by Pennsylvania law.
연방 법원은 펜실베니아는 오하이오의 2년 제한 기간 뿐만 아니라 2년이 시작되는 시점을 결정하는 오하이오 법도 차용했다고 추론했습니다.
The McKennas premise their argument on this Court's prior decision in Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Company.5 In Mack Trucks, we were asked to decide when an action for indemnity arose, for the purpose of determining whether the Pennsylvania "borrowing statute" was applicable to that action. Noting the "familiar rule" that a statute of limitations "begins to run when the cause of action arises, as determined by the occurrence of the final significant event necessary to make the claim suable," we held that a "cause arises where as well as when the final significant event that is essential to a suable claim occurs."6 Because the final significant event essential to the action for indemnity happened in Florida, we concluded that Florida's statute of limitations applied.
Mack Trucks' application of the Pennsylvania "borrowing statute," the McKennas claim, depended upon the ascertainment of where the cause of action arose, which in turn was based on the prior determination of when it accrued. In support of this interpretation, the McKennas rely on Prince v. Trustees of the University of Pennsylvania,7 which held, on the basis of Mack Trucks, that the "borrowing statute" applies "only upon satisfaction of two contingencies: (1) the cause of action must arise in another state; and (2) the cause of action must be totally barred by the law of that state. Under the Mack Truck analysis," the district court concluded, "satisfaction of the first contingency is determined by finding where the cause of action arose, and the determination is to be governed by Pennsylvania law."8
The crux of the justification offered for this construction of Mack Trucks is the assertion that we determined when the cause of action arose in that case by references to Pennsylvania law. But, as the most recent decision addressing this issue points out, "Mack Trucks relied not only on Pennsylvania cases but also on cases from other jurisdictions."9 Nor was there any suggestion in Mack Trucks that Florida would have commenced the running of the statute of limitations at a time different from when Pennsylvania would have. Inasmuch as Mack Trucks did not even discuss this issue, we do not find that decision controlling here.
We are persuaded, rather, that the apparent purpose of the Pennsylvania "borrowing statute" requires us to look to the law of the state where the cause of action arose to determine not only the prescribed period of limitations but also the point at which the statute begins to run. By its terms, the "borrowing statute" bars a plaintiff from suing in Pennsylvania "when (the) cause of action has been fully barred by the laws of the state . . . in which it arose . . .." In our view, the essential question posed under the "borrowing statute" is whether the action in question is precluded by the laws of the state in which it accrued, and the answer to that question also must be based on the law of the state in which the claim arose. To do otherwise might well revive an action which is "fully barred by the laws" of another state. Accordingly, because the McKennas' cause of action arose in Ohio, we must look to Ohio law to determine when Ohio's statute of limitations commenced to run. And the question for decision, then, is whether Ohio's statute of limitations commenced to run prior to the date Mrs. McKenna knew, or reasonably should have discovered, that her injuries were caused by Ortho-Novum.10
III.
Given that Ohio law governs the question for decision, the task remains to determine what the pertinent Ohio law is and then to apply it to this controversy. The question of how a federal court is to ascertain and apply state decisional law to a particular case has provoked considerable comment from courts and commentators alike.11 As some have noted, the concept that a federal court must determine state law is somewhat misleading inasmuch as it implies the existence of a readily accessible and easily understood body of state law.12 On the contrary, the law of a state is frequently "dynamic rather than static,"13 and consists of a working body of rules, which find expression in a number of sources. It is this working body of rules to which a federal court must look in order to ascertain the state law that governs in a particular case.
In those few instances in which the highest state court has recently spoken to the precise question at issue in a particular setting, the duty of the federal court to determine and apply state law is easily met. After all, "(t)he State's highest court is the best authority on its own law."14 The problem of ascertainment arises when, as here, the highest state court has not yet authoritatively addressed the critical issue. Recent opinions of this Court make clear that our disposition of such cases must be governed by a prediction of how the state's highest court would decide were it confronted with the problem.15 Although some have characterized this assignment as speculative or crystal-ball gazing, nonetheless it is a task which we may not decline.
연방 법원은 먼저 오하이오 법이 무엇인지 결정한다음에 그것을 적용 해야만 합니다. 연방 법원이 주법을 결정 할때 어떻게 하는지에 대한 질문은 많은 논쟁을 일으켜 왔습니다. 주의 관습법은 계속 변화 하고 있기에 이것을 연방 법원이 결정 할 수 있다는 것은 다소 오해의 소지가 있습니다. 일부 사람들의 비판에도 불구하고 연방 법원이 주법을 결정 할 때는 주 하급심 보다는 주 대법원의 입장에서 판결을 예측 해야만 합니다.
An accurate forecast of Ohio's law, as it would be expressed by its highest court, requires an examination of all relevant sources of that state's law in order to isolate those factors that would inform its decision. The primary source that must be analyzed of course, is the decisional law of the Ohio Supreme Court. In the absence of authority directly on point, decisions by that court in analogous cases provide useful indications of the court's probable disposition of a particular question of law. It is important to note, however, that our prediction "cannot be the product of a mere recitation of previously decided cases."16 In determining state law, a federal tribunal should be careful to avoid the "danger" of giving "a state court decision a more binding effect than would a court of that state under similar circumstances."17 Rather, relevant state precedents must be scrutinized with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince.18
Considered dicta by the state's highest court may also provide a federal court with reliable indicia of how the state tribunal might rule on a particular question.19 Because the highest state court "enjoys some latitude of decision in ascertaining the law applicable to a particular dispute even where there may be dicta in point,"20 however, a federal court should be circumspect in surrendering its own judgment concerning what the state law is on account of dicta. As Professor Charles Alan Wright has written, "much depends on the character of the dictum."21 Of somewhat less importance to a prognostication of what the highest state court will do are decisions of lower state courts and other federal courts. Such decisions should be accorded "proper regard" of course, but not conclusive effect.22 Thus, the Supreme Court has held that although the decision of a lower state court "should be "attributed some weight . . . the decision (is) not controlling . . . ' where the highest court of the State has not spoken on the point. . . . Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling."23 Additionally, federal courts may consider scholarly treatises, 24 the Restatement of Law, 25 and germane law review articles26 particularly, it seems, of schools within the state whose law is to be predicted.27
In sum, a federal court attempting to forecast state law must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand. The rule of Erie calls on us to apply state law and not, as the dissent notes, "to participate in an effort to change it"28 merely because we doubt its soundness. At the same time, however, blind adherence to state precedents "without evaluating the decision(s) in the light of other relevant data as to what the state law is, will result in injustice and a perversion of the state law which the federal court sets out to apply."29 As this Court has declared:30
A diversity litigant should not be drawn to the federal forum by the prospect of a more favorable outcome than he could expect in the state courts. But neither should he be penalized for his choice of the federal court by being deprived of the flexibility that a state court could reasonably be expected to show.
요컨대, 주법을 예측하려는 연방 법원은 관련 주 판례 등 여러 기타 신뢰할 수 있는 데이터를 고려해야 합니다. Erie의 규칙은 연방 법원에게 주법을 적용할 것을 요구하며, 단지 주법을 바꾸려는 것이 아닙니다.
단지 유리한 결과를 위해 연방 포럼으로 와서는 안 됩니다. 동시에 연방 법원을 선택한 것에 대해 불이익을 받아서도 안 됩니다.
IV.
In support of its conclusion that Ohio's statutes of limitation bar the McKennas' actions, the district court relied, as does the dissent here, primarily on Wyler v. Tripi,31 decided nine years ago by the Ohio Supreme Court. The central dispute in that case concerned the date on which a cause of action for medical malpractice accrued. Expressly following the rule announced in a series of prior decisions,32 Wyler held that the cause of action came into existence at the latest, at the time the physician-patient relationship terminated, and not when the plaintiff discovered the injury.
The "termination of treatment" concept was developed very early in Ohio law33 as an exception to the traditional rule that statutes of limitation commenced to run at the time an individual sustained injury as the result of the tortious act of another.34 It was designed, as the Wyler court observed, "to avoid the harsh results of the traditional rule"35 by tolling the applicable statute of limitations until the conclusion of the physician-patient relationship. Although this doctrine represents a "marked departure from the general rule," it "affords little relief in cases where the injury is one which requires a long developmental period before becoming dangerous and discoverable."36 In such cases, the termination exception extends the period before the statute of limitations begins to run, "but does so by a factor which bears no logical relationship to the injury incurred."37
오하이오의 공소시효가 메케나의 소송을 기각했다는 결론을 위해 원심연방법원은 와일러 (9년전 오하이오 대법원 판결)을 선택 했습니다. 와일러에 따르면 부상을 발견한 날이 아니라 의사와의 관계가 종료되는 시점으로부터 공소시효가 적용 됩니다. 와일러의 방식은 환자에게 가혹한 결과를 피할 수 있게 하기 위해 고안 되었습니다. 하지만 환자의 문제가 잠복기가 긴 경우는 와일러 방식도 의미가 없다는 것이 문제 입니다.
It was this kind of issue with which the Ohio Supreme Court was confronted in Wyler. The plaintiff there alleged that improper treatment by her physician ultimately resulted in the manifestation of asceptic necrosis, necessitating the replacement of her hip and the subsequent removal of her leg. Because the plaintiff failed to discover the alleged negligence within a year after she left the care of her physician, application of either the traditional rule or the "termination of treatment" exception would not prevent what the Wyler majority itself termed "the unconscionable result that the injured party's right to recovery can be barred by the statute of limitations before (s)he is even aware of its existence."38 Troubled by this result, the Ohio court examined the laws of various jurisdictions and the growing trend away from the traditional rule and towards adoption of the discovery rule. According to this approach, the statute of limitations does not begin to run until the plaintiff actually discovers, or with due diligence should have discovered, the negligence alleged.
와일러에서 원고는 의사의 진료가 끝난 후 1년 이내에 문제를 발견 하지 못하였기 때문에 원고는 다리를 절단 해야만 했지만 소송을 통해 아무런 보상을 받지 못했습니다.
이런 원하지 않았던 결과를 겪은 오하이오 법원은이 원하지 않았던 결과 였지만 오하이오주 입법부의 결정을 따를 수 밖에 없었습니다.
Although the court's examination of the cases persuaded it that "there is much to recommend the adoption of the discovery rule,"39 a bare majority nonetheless "reluctantly conclud(ed)" that "the courts of Ohio should not decree such an adoption."40 The sole justification for refusing to adopt the discovery rule was that such action should be left to the legislature. The court was "convinced that to (adopt the discovery rule) would place (it) in the obvious and untenable position of having not only legislated, but of having done so directly in the face of a clear and opposite legislative intent."41 Referring to the legislature's failure to adopt the discovery rule by legislation, the court concluded: "In consideration of the obvious and repeated disinclination of the General Assembly to amend its malpractice statute of limitations, we are compelled to adhere to our former decisions on the question and refrain from judicially adopting that which has so clearly been legislatively rejected."42
Notwithstanding this extensive pronouncement of the court's position, this same court during the following year employed the discovery rule in Melnyk v. Cleveland Clinic.43 The plaintiff there alleged that a physician employed by the Clinic had negligently left a metallic forceps and a nonabsorbent sponge in his abdomen. Even though the plaintiff failed to discover the negligence until more than one year after he left the care of the physician, the Ohio Supreme Court refused to bar his action, and held that the applicable one-year statute of limitations was tolled "until such time as the patient discovers, or by exercise of reasonable diligence should have discovered, the negligent act."44
하지만 3년 후 오하이오 법원은 Melnyk 에서 디스커버리 룰을 선택 했습니다. 환자 원고는 의사가 복부에 금속집게와 스폰지를 실수로 꺼내지 않았다고 주장 했습니다. 원고는 이사실을 진료가 끝 난지 1년이 넘도록 발견 하지 못했지만 오하이오 대법원은 소송을 기각 하지 않았습니다.
Although the Melnyk court took great pains, as does the dissent in this case, to distinguish Melnyk from Wyler on the ground that the former did not involve the "problems faced in the defense of a "stale' claim for medical malpractice,"45 the distinction, as a recent commentator on Ohio law has argued, "in essence is an artificial one."46 Indeed, Wyler expressly took note of the fact that courts adopting the discovery doctrine viewed it "as being entirely consistent with the policy of the statute of limitations to prevent "stale claims.' "47 The holding of Wyler declining to adopt the discovery rule depended not at all on the policy of discouraging stale claims, but solely upon the court's reluctance to contravene what it then believed to be the policy of the state legislature. By embracing the discovery rule in Melnyk, therefore, the Ohio Supreme Court "completely abandoned the rationale which served as the basis and justification for the Wyler decision, namely, that of legislative prerogative in this area."48
멘릭에서도 와일러사건과 차이점을 보이기 위해 많은 노력을 기울였지만 현 사건은 다수 의견은 동일 하다고 보고 있습니다.
(서서히 진행되는 질병과 단순히 뱃속에 꺼내지 못한 수술 도구를 발견 하는 것이 차이가 있을 수 있습니다. 전자는 환자가 문제를 인지 하고 있었거나 진료과실과 상관없는 문제로 소송을 할 가능성이 높습니다. 환자의 있을 수 있는 거짓 증언을 반박해야 할 의사의 부담이 큽니다.)
와일러가 디서커버리 룰을 적용 하지 못한 것은 입법부의 정책에 따르기 위함 이였고 멘릭에서는 입법부의 정책에 관계없이 디스커버리 룰을 채택 했으므로 와일러의 리즈닝을 완전히 포기 한 것이나 다름 없습니다.
Melnyk's implicit rejection of the Wyler rationale that only the state legislature may properly decide whether to apply the discovery rule appears well justified. As evidence of the alleged intent of the legislature to eschew the discovery rule, Wyler referred to the legislature's failure to enact legislation modifying the court's prior decisions that interpreted the statute of limitations for medical malpractice.49 Legislative inaction, however, "is a weak reed upon which to lean in determining legislative intent."50 A statute of limitations is a product of legislation, but it is the judiciary's task to interpret and enforce such an enactment. The Ohio statute in question here is phrased in general terms and requires only that an action for bodily injury "shall be brought within two years after the cause thereof arose."51 The legislature left unresolved when a cause of action arises and when the statute commences to run. And, in Ohio, these kinds of determinations have always been the product of "judicial interpretation, not legislative promulgation."52 Consequently, application of the discovery rule to the facts of this case in no way intrudes on the authority of the state legislature. Indeed, Ohio's selection of the termination exception represented not only a marked departure from the traditional rule, but also a judicial determination as to when a cause of action accrues. Melnyk's choice of the discovery rule, at least in the absence of an expression by the legislature prohibiting such an adoption, therefore appears fully compatible with the court's responsibility to ascertain and comply with legislative intention.53
법원은 오하이오 입법부의 의도를 다르게 해석 했습니다. (여기서 감탄...) (입법부의 의도를 추정 하여termination rule을 정당화 하기 위해) 법원은 와일러 판결에서 입법부가 공소시효를 해석한 이전 판결에 아무런 반응을 보이지 않은 것을 언급 했습니다. 하지만 입법부의 이러한 무 반응을 통해 입법부의 의도를 알 기는 어렵습니다. 공소시효를 결정 하는 것은 입법부의 역할 이지만 입법부가 제정한 법을 해석 하는 것은 사법부의 역할 입니다. 오하이오 공소시효 법은 termination rule 이나 discovery rule을 언급 하지 않습니다. 단지 2년이내에 소송이 제기 되어야 한다고 나와 있습니다. 결과적으로 사법부의 판단은 입법부의 권한을 침해 하지 않았습니다. termination rule 은 오하이오의 전통 룰과 크게 달랐지만 사법부의 합법적인 법률 해석에 해당 했습니다. 따라서 멘릭 사건의 discovery rule 또한 입법부의 간섭이 없는 한 사법부의 합법적인 법률 해석의 결과로 볼 수 있습니다.
Moreover, the Ohio Supreme Court in Melnyk distinguished its decision in Wyler as speaking only to the question of when a cause of action arises, and not to the determination whether the running of the statute of limitations is, for some reason, tolled.54 It then proceeded to hold that the running of the statute of limitations on Melnyk's cause of action was tolled until such time as he discovered, or by the exercise of reasonable diligence should have discovered, the negligent act, even though his cause of action accrued, under Wyler, at the termination of the patient-physician relationship. On this analysis, the holding in Wyler determines only when the McKennas' cause of action accrued; it is inapposite to the question whether the action was tolled until such time as the McKennas could know how Mrs. McKenna's injuries occurred.
It is claimed, nonetheless, that "Melnyk does not overrule Wyler," but "merely carves out a very specific and narrow exception"55 to the termination rule when, as in that case, surgical instruments are left in a patient's body. For this reason, the dissent would not apply the discovery rule to the circumstances of this case. In its view, we are improperly modifying a "decadent" and "unenlightened" doctrine of state law simply because we disagree with it. On the contrary, however, we fully recognize our responsibility to accurately apply the pertinent Ohio law. Indeed, we do not dispute that federal courts must faithfully adhere to state substantive law in non-federal matters. But, as commentators have emphasized, such adherence should be wise and discerning. This Court has noted only recently that "while a federal diversity court must not fashion a wholly independent federal standard with which to determine matters of substantive right, it likewise must not conceive of its role as applying the state decisional law to the case at hand in a narrow and mechanical fashion."56 Rather, a federal court must "be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts."57
In our view, the Ohio Supreme Court's decision in Melnyk not only abandoned the sole justification proffered for its opposition in Wyler to the adoption of the discovery rule, but also manifested a recognition that this approach alone avoids the harsh and inequitable results of applying the traditional rule in such cases. "Certainly a federal court sitting in diversity should not mechanically follow precedent and blindly apply principles of stare decisis when it appears that the corresponding state court would adjust its common law to meet changing conditions."58 A fair scrutiny of the relevant Ohio precedents, with an eye toward the principles and policies underlying them, strongly indicates that the Ohio Supreme Court would extend the discovery rule set forth in Melnyk to include the type of personal injury action present here.
The task of a federal court sitting in diversity is often difficult, for it must forsake its own expertise and assume that of the foreign state. Required as we are to predict how the Ohio Supreme Court would decide the present case, however, we believe that the Court would hold that the applicable statutes of limitation in this case were tolled until the McKennas knew, or by the exercise of reasonable diligence should have discovered, the cause of Mrs. McKenna's injuries. Accordingly, we reverse the judgment of the district court, and remand for further proceedings consistent with this opinion.
다이버시티 사건에서 연방법원은 주법원이 관습법을 변경 할 것을 보일 때 기계적으로 판례를 적용 해서는 안됩니다. 사건을 해결 하기 위한 주정부의 원칙과 정책에 대한 조사도 병행 되어야 하기 때문에 어려운 과제 이지만... 현 연방 법원은 오하이오 법원이 와일러를 뒤집고 멘릭의 discovery rule 을 선택 했을 것을 것으로 예측 하였습니다. 따라서 메케나 부인의 소송기각은 취소 되었습니다.
LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting.
A.
Although I am as moved as my colleagues are by the alleged tragic effects from Mrs. McKenna's ingestion of appellee's birth control pills and while I am as convinced as they are that the discovery rule is a humane and desirable component of medical malpractice law, I must respectfully dissent. I cannot join them because the Ohio Supreme Court has not adopted and would not now adopt the modern view on discovery in medical malpractice cases. I see no sign that Ohio is withdrawing from its views on the medical malpractice doctrines relevant to this case. The distinguished trial judge who tried this case so patiently, was not unsympathetic to the plight of Mrs. McKenna; yet from my view he is being reversed — not because he was wrong — but because the relevant Ohio law is unenlightened.
디센팅 의견은 오하이오 대법원이 최신 견해인 discovery rule 을 채택 하지 않았으므로 다수의 의견에 동의 하지 않습니다. 오하이오 판결문을 통해 이전 룰을 철회 한다는 징후를 발견 할 수 없습니다.
원심 판사는 메케나 부인에게 동정심이 없었지만 그의 판단은 철저히 오하이오 주법에 따른 결과 였습니다.
In Gemignani v. Philadelphia Phillies National League Baseball Club, Inc., 287 F. Supp. 465 (E.D.Pa. 1967), I held that the Pennsylvania discovery rule tolled the statute of limitations until the plaintiff learns of the casual relationship between his physician's actions and his injury.
With respect, I submit that the majority disregards Ohio's current (though archaic) doctrine and announces a rule of law that Ohio should adopt. In 1971 the Ohio Supreme Court firmly and resolutely rejected the discovery rule. Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971). Because I conclude that the Ohio Supreme Court would adhere to the Wyler v. Tripi decision, I must dissent.
B.
Ohio courts have long held that the plaintiff's inability to discover the tortious act of the defendant has no relevance to the running of the applicable statute of limitations. E. g., Kerns v. Schoonmaker, 4 Ohio 331 (1831) (negligent acts of justice of the peace); 34 Ohio Jurisprudence 2d 536. This doctrine was reaffirmed by the Ohio Supreme Court in Wyler v. Tripi in 1971 and applied to medical malpractice actions. In Wyler v. Tripi, the court rejected an explicit request of the plaintiff to overrule that harsh precedent. In declining the invitation, the court recognized that its action could "lead to the unconscionable result that [an] injured party's right to recovery [would] be barred by the statute of limitations before he is even aware of its existence." 267 N.E.2d at 421. The court relied neither on a policy justification for a short period of limitations nor on humanity considerations when it rejected the discovery rule. Indeed, it noted that "[t]here is much to recommend the adoption of a discovery rule." It declined to adopt the rule on the ground that to do so would place us in the obvious and untenable position of having done so directly in the face of a clear and opposite legislative intent.
In spite of this explicit statement the majority declines to follow Wyler. It argues that the Wyler rationale would be abandoned in a 1980 decision of the Ohio Supreme Court and thus it feels free to include the discovery rule in its decision. I do not agree. None of the materials the majority cites persuades me that an abandonment of the Wyler rationale is in the wind, nor have I unearthed any materials that foretell such an event.
The primary source of the majority's view is Melnyk v. The Cleveland Clinic, 32 Ohio St.2d 198, 290 N.E.2d 916 (1972), a decision of the Ohio Supreme Court, decided one year after Wyler. In an opinion by Justice Herbert, who also wrote the Wyler opinion, the court stated:
. . . . the negligent leaving of a metallic forceps and a nonabsorbent sponge inside a patient's body during surgery will toll the running of the statute of limitation upon that cause of action until such time as the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act.
290 N.E.2d at 918.
Melnyk does not overrule Wyler; it merely carves out a very specific and narrow exception: when surgical instruments are left in a patient's body a discovery period tolls the running of the statute of limitations. The Melnyk court did not "abando[n] the rationale" of Wyler when it created this exception. Majority Opinion Typescript, at 666. The court held that the case before it did not disturb the legislative judgment. Justice Herbert noted that the limitations period in most malpractice cases reflected a balancing of the interests of physicians and patients and that the Ohio legislature had struck the balance in favor of physicians because of the difficulties of proof in most malpractice cases. The court argued that in a "foreign-objects" case the plaintiff's proof of the physician's negligence, once the existence of the foreign object was established, was irrefutable, and therefore the court felt free to include a discovery period in the "foreign objects" cases. 290 N.E.2d at 917. The Melnyk court carefully noted that it did not "need to disturb the holding in Wyler, nor interfere in the affairs of our sister branch government, in order to accord this rule of law the viability we have determined it must have." Id. at 918.
멘릭은 와일러를 뒤집지 않았습니다. 단지 수술 기구가 환자의 몸에 남았을 때의 구체적인 예외를 만들었을 뿐 입니다. 허버트 판사는 대부분의 의료과실 사건에서 입증의 어려움으로 인해 의사에게 유리한 법이 필요 하다고 지적 했습니다. 환자의 몸속에 이물질이 발견 되면 의료 과실에 대한 증거를 반박 할 수 없으므로 이물질 사건의 예외가 성립 될 수 있다고 지적 했습니다.
C.
Finally, I am convinced that the majority reading of the Melnyk decision is incorrect because every state or federal court decision in Ohio on this question has rejected that reading, e.g., Simmons v. Riverside Methodist Hospital, 44 Ohio App.2d 146, 336 N.E.2d 460 (1975); Woodgeard v. Miami Valley Hospital Society of Dayton, 47 Ohio Misc. 43, 354 N.E.2d 720 (C.P. 1975), aff'd mem. No. C.A. 4772 (Ct.App. Sept. 12, 1975); Shrewsbury v. Smith, 511 F.2d 1058 (6th Cir. 1975), including those courts that have considered claims for injuries allegedly resulting from birth control pills. E.g., Gillan v. Searle Laboratories, Civ. No. C-2-77-863 (S.D.Ohio, Oct. 13, 1978).
D.
The instant case reflects the inherent disadvantage of a plaintiff making the tactical decision to litigate a diversity case in a federal court where the core of plaintiff's case is contingent upon a federal court anticipating a state law doctrine in the "womb of time, but whose birth is distant." For we have been asked here to deliver prematurely a new Ohio statute of limitations doctrine despite the fact that that concept has been expressly rejected, and recently so, by every state and federal court in Ohio. I do not claim that the Ohio Supreme Court's views on when the statute of limitations starts to run in cases such as these are part of the modern or enlightened trends. But if counsel wants to test whether Ohio will have more enlightened views on the statute of limitations issues, it is far better for counsel to litigate those issues in the state courts of Ohio which have the final say on when their recently expressed views will be repudiated.
오하이오주에서 statute of limitation을 termination rule 에서 discovery rule 로 변경 할 것을 두려워한 피고는 재판을 연방 관할권으로 이전 요청을 했습니다. 연방 법원에서 주법을 변경하기를 꺼리기 때문 입니다. 그러나 피고의 기대와는 달리 연방법원에서 Discovery rule룰을 적용 하여 오하이오 룰을 변경 하는 판결이 내려졌습니다. 디센팅은 오하이오의 최종 결정 전에 연방 법원이 오하이오 법을 결정 하는 것은 바람직 하지 못하다고 보고 있습니다.
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