June 17, 1980
SONDRA L. MCKENNA AND JAMES R. MCKENNA, APPELLANTS
ORTHO PHARMACEUTICAL CORPORATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA C.A. No. 74-0808
Before Adams, Hunter and Higginbotham, Circuit Judges.
SUPPLEMENTAL OPINION SUR THE DENIAL OF THE PETITION FOR REHEARING
Shortly after the opinions in this matter were filed, Counsel for Ortho Pharmaceutical Corporation brought to the attention of the Court the fact that the Governor of Ohio on March 13, 1980, signed into law a bill amending § 2305.10 of the Ohio Rev.Code. While that section still states, as before, that "(an) action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose," the amendment now provides further that:
For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first.
Relying primarily on this amendment, Ortho submitted a petition for rehearing claiming that this provision removes the basis for our decision that "the Ohio Supreme Court would extend the discovery rule set forth in Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 290 N.E.2d 916 (1972) to include the type of personal injury action present here." (Majority opinion typescript at 666-667). The panel requested the McKennas to file an answer to Ortho's petition. After reviewing the parties' briefs in light of the amendment to § 2305.10, we adhere to our original position.
Prior to the amendment in question, § 2305.10 required that an action for bodily injury "shall be brought within two years after the cause thereof arose." Regarding the question when a cause of action arises, however the statute was silent. In amending this provision, the legislature specifically stipulated that a cause of action for bodily injury caused by exposure to asbestos or to chromium arises upon the date on which the plaintiff is informed or reasonably should have become aware that he was injured by the exposure.
Ortho argues that this amendment represents a clear legislative pronouncement that the "Ohio courts are to apply a discovery rule in the two enumerated categories of cases and none other." Invoking the precept of expressio unius est exclusio alterius, Ortho relies on 50 Ohio Jurisprudence 2d § 188 to support its contention that in Ohio the specific enumeration by the legislature of items in a statute implies the exclusion of others. Ortho then concludes, in effect, that the legislature, in specifically postponing the time when a cause of action arises in cases involving injury resulting from asbestos or chromium, thereby precluded application of the discovery rule in all other cases.
As the section immediately following that relied on by Ortho points out, however, "(t)he maxim "expressio unius est exclusio alterius' is not of universal application and caution should be exercised in its use," id. § 189 at 166-67. In our view, the cautious and more reasonable construction of the amendment, a well as the one we believe the Ohio Supreme Court would embrace, is that it was not meant to preclude judicial adoption of the discovery rule in appropriate circumstances. Adoption of the contrary construction would effectively abrogate that court's well-established principle, expressly reaffirmed in Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), that a cause of action for medical malpractice arises, at the latest, when the physician-patient relationship terminates. We believe the Ohio Supreme Court would hold that if the legislature had intended, by its passage of this amendment, not merely to extend greater protection to victims of asbestos and chromium poisoning but at the same time to deprive victims of medical malpractice of the protection they currently enjoy under the Ohio Supreme Court's decisional law, it would have done so expressly and not by implication.
Even if the amendment to § 2305.10 does by indicating specifically when a cause of action arises in cases of asbestos or chromium poisoning effectively establish just when a cause of action must arise in all other cases, however, that would not affect our decision here. For we accepted the district court's determination that the McKennas' causes of action arose at the time consequential injury resulted from Mrs. McKenna's ingestion of Ortho-Novum. Nevertheless, we held that the Ohio Supreme Court would decide that the applicable statutes of limitation were tolled until the McKenna's knew, or by the exercise of reasonable diligence should have discovered, the cause of Mrs. McKenna's injuries. In so doing, we expressly followed the distinction drawn by the Ohio Supreme Court in Melnyk between the question when a cause of action arises and the determination whether the statute of limitations may, for some reason, be tolled on such action. Since the amendment at issue, even if it implicates the question when a cause of action for bodily injury from birth control pills arises, does not affect the determination whether the statute of limitations respecting that action may be tolled, we adhere to our prior opinion.
Judge Hunter joins in this opinion.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting.
With all due respect to my colleagues, I believe that they err in their continuing adherence to their view on the roles of Ohio's legislative and judicial branches in the alteration of Ohio's statute of limitations. As I indicated earlier, it is my belief that the Ohio courts have in the past and will in the future adhere to the view that "statutes of limitation are a legislative prerogative and their operation and effect are based upon important legislative policy." Wetzel v. Weyant, 41 Ohio St.2d 135, 323 N.E.2d 711, 713 (1975).
As is noted by the majority, the Ortho Pharmaceutical Corporation brought to the attention of this court legislation which amends Ohio's statute of limitations, § 2305.10 Ohio Rev.Code, to include a discovery period for two types of injury, those caused "by exposure to asbestos or to chromium." This legislation is irreconcilable with the panel's rationale. It clearly evidences an intention of the Ohio legislature to reject a general discovery rule that would encompass the plaintiffs' suit and to continue their traditional role in the area of statutes of limitation.
I agree with the majority that the Ohio Supreme Court would not blindly follow the rule of expressio unius est exclusio alterius; however, I believe that it would be followed here. First, Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), where Ohio's Supreme Court rejected a general discovery rule, is an implicit application of expressio unius est exclusio alterius. The following passage indicates that the Ohio Supreme Court would apply the rule, adverse to the plaintiffs, when it reflected upon the new amendment to § 2305.10 of the Ohio Rev.Code.
It should also be noted that although the General Assembly has refused to adopt the discovery rule for medical malpractice cases, it has nevertheless created certain exceptions to the general operation of various other statutes of limitation.
Wyler, 267 N.E.2d at 423. Second, I believe that Ohio's Supreme Court would consider the members of the Ohio General Assembly to be perfectly capable of drafting a general discovery statute and the court would hold that the General Assembly would have done so had it felt that a more general discovery rule was desirable. I note that the General Assembly has had general statutes presented to it in the past and has chosen not to adopt them. See Wyler v. Tripi, 267 N.E.2d at 423 (describing House Bill No. 177, introduced in the 101st General Assembly, which would have provided for a discovery period in all malpractice cases).
The majority's argument that legislative prerogative extends only to the issue of "when" a statute starts to run and not to whether it is "tolled" is simply a semantic one. The key issue here is which branch of government decides whether these plaintiffs' suit is timely. Unlike the relationship between many state appellate courts and their respective legislatures, the Ohio courts have more frequently deferred to the Ohio General Assembly in cases of this type. On this record I believe they would also defer to the Ohio legislature and so should the United States Court of Appeals for the Third Circuit.*fn1
Thus, I would grant the petition for rehearing and affirm the decision of the lower court.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting.
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,*fn1a 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.
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.
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.*fn2
Id. at 423.
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:
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 "(abandon) 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.
The following language from the beginning of the Melnyk opinion further suggests the court was reaffirming the legislature's authority in this area.
The Wyler case involved the problems faced in the defense of a "stale" claim for medical malpractice. As in other fields of highly technical and inexact science, evidence in defense of such claims is unusually difficult to acquire and present. . . . (T)he General Assembly exercised its prerogative in this field and enacted a statute of limitation of comparatively brief duration. Wyler recognized the legislative authority to so act, but as heretofore noted, did so with an unmistakable lack of enthusiasm.
Id. at 917 (footnotes omitted).
The validity of the Wyler rationale is underscored by a decision of the Ohio Supreme Court five years later, Amer v. Akron City Hospital, 47 Ohio St.2d 85, 351 N.E.2d 479 (1976). There the court deferred to the legislative judgment on statutes of limitations. In Amer a husband brought an action for loss of consortium because of an alleged medical malpractice upon his wife. The court held that the applicable statute of limitations "is not tolled until termination of the physician-patient relationship." 351 N.E.2d at 480. (quotation is from the court's syllabus) (emphasis added).*fn3 The husband had argued that tolling was necessary because the malpractice was not discovered until after the termination of the physician-patient relationship. If tolling was not permitted, his action would be barred before his wife's was barred, even though his action arose out of the same negligence. The court held that it would not disturb its forty-year-old rule set forth in Kraut v. Cleveland Ry. Co., 132 Ohio St. 125, 5 N.E.2d 324 (1936) because the legislature had failed to change the rule, although it had recently amended portions of the code covering statutes of limitations in medical malpractice cases.
The Amer decision was rendered over the dissent of Justice Herbert, the author of the Wyler and Melnyk opinions. Justice Celebrezze also dissented and argued that the statute of limitations should not run until the physician-patient relationship terminated. He stated:
"Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity?"
351 N.E.2d at 485.
In spite of this plea, he was unable to persuade a majority of the court to reject the legislative decision.
The Amer decision convinces me that the Ohio Supreme Court has not abandoned its decision not to "interfere in the affairs of (its) sister branch (of) government." Melnyk, 290 N.E.2d at 918. Further it shows that whether or not the Oregon courts feel that legislative inaction "is a weak reed upon which to lean," Berry v. Branner, 245 Or. 307, 421 P.2d 996, 998 (1966), quoted in Majority Opinion Typescript, at 665, the Ohio Supreme Court has chosen to lean on it.
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).
The instant case reflects the inherent disadvantage of a plaintiff making the tactical decision to litigate a diversity case in a federal court*fn4 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."*fn5 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.*fn6 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.
For the reasons expressed above I respectfully dissent.