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Assignment
The reason why the federal court decided the Ohio case of Melnyk rather than Wyler?
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. On the contrary, the law of a state is frequently "dynamic rather than static."
After all, "the State's highest court is the best authority on its own law." 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. Although some have characterized this assignment as speculative or crystal-ball gazing, nonetheless it is a task which we may not decline.
It is important to note, however, that our prediction "cannot be the product of a mere recitation of previously decided cases."
dicta by the state's highest court may provide a federal court with reliable indicia of how the state tribunal might rule on a particular question. Additionally, federal courts may consider scholarly treatises, the Restatement of Law, and germane law review articles.
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" merely because we doubt its soundness. At the same time, however, blind adherence to state precedents "without evaluating the decisions 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." As this Court has declared:
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.
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.
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.
Although the court's examination of the cases persuaded it that "there is much to recommend the adoption of the discovery rule," a bare majority nonetheless "reluctantly concluded" that "the courts of Ohio should not decree such an adoption."
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. 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.
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."
It is often assumed that federal courts can easily determine state law by its precedent, but this is not always the case. State law is frequently dynamic, meaning that it is constantly evolving and not always easy to interpret. When the highest state court has not yet provided an authoritative ruling on a critical issue, federal courts must predict how the state's highest court would decide if the issue was presented to them. While some may view this task as speculative, it is one that federal courts cannot decline. While performing this task, federal courts can consider other sources such as dicta from the state's highest court, scholarly works, and law review articles. A federal court must evaluate all relevant data because the rule of Erie requires that federal courts apply state law instead of attempting to change it. Similarly, in this way, a diversity litigant should not be penalized for choosing the federal court.
The district court relied on Wyler, which 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.
Although the court's examination showed that there was a recommendation for the adoption of the discovery rule, the Ohio Supreme Court refused to decree such an adoption.
Nonetheless, Melnyk court adopted the discovery rule.
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.
Legislative inaction, however, "is a weak reed upon which to lean in determining legislative intent." 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." The legislature left unresolved when a cause of action arises and when the statute commences to run. And, in Ohio, deciding the meaning of a statute has always been the product of "judicial interpretation, not legislative promulgation." Consequently, the 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.
It is claimed, nonetheless, that "Melnyk does not overrule Wyler," but "merely carves out a very specific and narrow exception" to the termination rule when, as in that case, surgical instruments are left in a patient's body.
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."
Legislative inaction is not a strong indication of legislative intent.
The Ohio Supreme Court's decision in Melnyk rejected Wyler's stance that only the state legislature is authorized to decide whether to apply the discovery rule.
The Ohio statute is written broadly, allowing the judiciary to determine when a cause of action arises. Wyler is not only a marked departure from the traditional rule but also a judicial determination of when a cause of action accrues. Melnyk's choice of the discovery rule, however, is compatible with the court's responsibility, and it does not intrude on the authority of the state legislature.
It has been argued that Melnyk did not overrule Wyler but merely carved out a specific and narrow exception to the termination rule where surgical instruments are left in a patient's body. However, Wyler recognized that using the termination rule is to avoid the harsh and inequitable results of applying the traditional rule in such cases. Therefore, 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.
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