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McKenna v. Ortho Pharmaceutical Corp.

June 17, 1980

SONDRA L. MCKENNA AND JAMES R. MCKENNA, APPELLANTS
v.
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.

Author: Adams

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 ...


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