Hatfield ex rel. Hatfield v. Bishop Clarkson Memorial Hospital

701 F.2d 1266

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 17, 1983
• Docket: Nos. 81-2114, 82-1010
• Status: Published

Opinions

ROSS, Circuit Judge.

This case comes before this court on rehearing en bane. As stated in the panel opinion “[t]he sole question in this case is whether a Nebraska statute of limitations on professional negligence actions is tolled during the infancy of an injured minor.” Hatfield v. Bishop Clarkson Memorial Hosp., 679 F.2d 1258 (8th Cir.1982).

Factual and Procedural History

This diversity action was brought in federal district court¹ in Nebraska alleging that Dr. John George and Bishop Clarkson Memorial Hospital negligently provided medical care, to Tamara Hatfield’s mother during and after Tamara’s birth on August 25, 1965. The complaint alleged that Dr. George administered an excessive dose of the drug carbocaine to Mrs. Hatfield during delivery, which resulted in brain damage and mental retardation to Tamara. Plaintiff further alleged that Dr. George and hospital personnel were negligent in taking remedial measures to resuscitate the infant after birth.

The complaint was filed on January 31, 1979, more than 13 years after the alleged acts of negligence. Defendants moved for summary judgment on the grounds that the complaint was filed after the ten year statute of limitations provided for medical malpractice actions. Neb.Rev.Stat. § 25-222 (1979). The district court granted defendant’s motion for summary judgment. Plaintiff appealed asserting that Neb.Rev. Stat. § 25-213 tolls the running of the ten year statute of limitations during a plaintiff’s infancy. A panel of this court addressed the merits of this case and held that the infant statute did toll the running of the professional negligence statute. Upon reconsideration en banc, we decline to reach the merits and instead by an order filed this date, we certify the question to the Nebraska Supreme Court pursuant to Neb.Rev. Stat. § 24-219 (Cum.Supp.1982).

Discussion

The United States Supreme Court in Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974) held that use of a state’s certification procedure “rests in the sound discretion of the federal court.” The Court determined that although a federal court was not required to resort to certification, certification was “particularly appropriate in view of the novelty of the question” and the unsettled nature of state law. Id. at 391, 94 S.Ct. at 1744. See also Clay v. Sun Insurance Office, 363 U.S. 207, 212, 80 S.Ct. 1222, 1225, 4 L.Ed.2d 1170 (1960). Because of the unsettled nature of Nebraska law on this issue and because a determination of this issue could be dispositive of this case, the

issue is appropriate for certification to the Nebraska Supreme Court. Elkins v. Moreno, 435 U.S. 647, 668, 98 S.Ct. 1338, 1350, 55 L.Ed.2d 614 (1978).

In Barnes v. Atlantic & Pacific Life Ins. Co. of America, 514 F.2d 704, 705 n. 4 (5th Cir.1975) the Fifth Circuit stated that judgment and restraint are to be used in deciding whether to certify a question. However, the court welcomed the opportunity to certify a question of state law to the Alabama Supreme Court reasoning that

[wjhen the state law is in doubt especially on the underlying public policy aims, it is in the best administration of justice to afford the litigants a consistent final judicial resolution by utilizing the certification procedure.

Id. at 706. The same considerations exist in the present case. We are without guidance from the Nebraska courts as to the issue presented in this case. Neither the Nebraska courts nor this court have addressed the issue of the relationship between the infant tolling statute and the new medical malpractice statute of limitations. Additionally, the public policy aims involved in the statutes at issue are conflicting and are better analyzed by the state court than by this court. The function of a federal court is not to choose the rule which it might follow were this a question of federal law, but rather to adopt the rule which it believes the state court would apply. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 202-205, 76 S.Ct. 273, 275-277, 100 L.Ed. 199 (1956). Where we find no state law precedent on point and where the public policy aims are conflicting the case may properly be certified to the state court. In Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943) the issue before the Supreme Court was whether the circuit court “rightly declined to exercise its jurisdiction on the ground that decision of the case on the merits turned on questions of Florida constitutional and statutory law which the decisions of the Florida courts had left in a state of uncertainty.” Id. at 229, 64 S.Ct. at 8. The Supreme Court held that where federal jurisdiction is properly invoked it is the duty of the federal court to decide questions of state law. Id. at 234, 64 S.Ct. at 10. However, the Court explicitly recognized a federal court’s option to

stay proceedings before it, to enable the parties to litigate first in state courts questions of state law, decision of which is preliminary to, and may render unnecessary, decision of the constitutional questions presented.

Id. at 236, 64 S.Ct. at 12 (citations omitted). The certification procedure is an alternative which effectuates just such a result.

The principle of avoiding a federal constitutional question by “securpng] an authoritative state court’s determination of an unresolved question of its local law” is well established. Clay v. Sun Insurance Office, supra, 363 U.S. at 212, 80 S.Ct. at 1226. A ruling by the Nebraska Supreme Court could render unnecessary a decision by this court of the constitutional questions raised by plaintiffs and possibly a trial in the federal district court on the merits. Furthermore, the Supreme Court has recognized that certification is not the drastic procedure that the Court in Meredith v. Winter Haven, supra, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, held abstention to be. Bellot-ti v. Baird, 428 U.S. 132, 151, 96 S.Ct. 2857, 2868, 49 L.Ed.2d 844 (1976). Here, certification would not deprive this court of jurisdiction, nor would it force the parties into state court, but rather would afford the parties a state forum for a state law question which process may obviate further extensive consideration by this court.

In State of Fla. ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274-75 (5th Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976) the Fifth Circuit established guidelines for determining when certification is appropriate. The court in Shevin refused to certify the question to the Florida Supreme Court because: (1) the legal question was not an “extremely close one”; (2) the court would not be “required to ‘guess’ state law from one or two questionable precedents” because the court had the benefit of a long line of Florida cases; and (3) the case “is primarily a federal case, and one which has not been ‘lured’ into federal court by means of the diversity jurisdiction.” Id. at 275. Shevin is distinguishable because in the present case, (1) this court is without guidance from the Nebraska courts, (2) the case is not primarily a federal case but rather a strict diversity case, and (3) the legal question is close.

The Fifth Circuit stated that one consideration in determining whether to certify a question is “the likelihood of the recurrence of the particular legal issue.” Id. at 275 n. 29. This factor is of particular importance in the present case. Currently pending before the Nebraska Supreme Court is a case in which the statutes and issues involved are identical to those presented here. Sac-chi v. Blodig, No. 82-301. Some of the attorneys representing the parties in the present case are also briefing and preparing to argue Sacchi. If the Nebraska Supreme Court in Sacchi concludes that the ten year period of section 25-222 is not tolled by section 25-213 that ruling will require dismissal of the complaint in the present case. The state court ruling is binding on the federal courts and must be applied to this case regardless of the stage the case has reached. Vanderbark v. Owens-Illinois Co., 311 U.S. 538, 541, 61 S.Ct. 347, 349, 85 L.Ed. 327 (1941). This is an especially persuasive reason for certifying this issue as the expenses involved in discovery and trial of this case will be wasted if at any stage of these proceedings the Nebraska court rules that the ten year statute is not tolled.

Although we are aware of the possible delay which could result from certifying a question, Neb.Rev.Stat. § 24-224 (Cum. Supp.1982) mandates that upon certification the case be expedited by the Nebraska Supreme Court for a prompt resolution of the issue so that justice not be delayed.² The argument that valuable discovery time will have elapsed carries little weight in light of the fact that plaintiffs parents waited thirteen years to file this action and it now has been more than seventeen years since the medical services were rendered. Valuable discovery time appears to have already passed. Delay in the factual context of the present case does not outweigh the significant principle of comity.

The fact that the district court did not certify this question does not bar this court from utilizing the certification procedure. First, the Nebraska certification statute did not become effective until July 17, 1982. Neb.Rev.Stat. § 24-219 (Cum. Supp.1982). Thus, the certification procedure was not available to the district court at the time it considered the statute of limitations issue. Second, this court has in the past certified questions where the district court has failed or refused to employ that device. In Beilke v. Droz, 675 F.2d 194 (8th Cir.1982), the federal district court had granted defendant’s motion for summary judgment holding that the applicable Iowa statute of limitations was two years. Notwithstanding the fact that the matter had been ruled on by the district court, this court certified the statute of limitations issue to the Iowa Supreme Court which promptly ruled on the question. This court then reversed and remanded the case for further proceedings consistent with the Iowa Supreme Court’s ruling. Additionally, in National Steel Service Center v. Gibbons, 693 F.2d 817 (8th Cir.1982) the district court declined to certify a question of the correct application of strict liability in Iowa. Nonetheless, when the matter arose on appeal, this court certified the strict liability issue to the Iowa Supreme Court. The judgment was later affirmed according to the Iowa Supreme Court’s decision. Although the better practice may be to refer matters to the state supreme court at the district court level, the circuit court is not barred from certifying a question where the district court declined to certify; particularly where the certification procedure was not available at the time the district court ruled.

Certification “in the long run save[s] time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Brothers v. Schein, supra, 416 U.S. at 391, 94 S.Ct. at 1741. For the reasons stated herein, by order filed this date, the issue in this case is certified to the Nebraska Supreme Court.

1 . The Honorable Albert G. Schatz, United States District Judge for the District of Nebraska.

2 . The public records of the Clerk of the United States District Court for the District of Nebraska reveal that in a recent case in federal district court in Nebraska, Judge Albert G. Schatz certified a Nebraska statute of limitations question to the Nebraska Supreme Court on November 8, 1982. Stone v. Mavis, No. 81-0411 (D.Neb.). The Nebraska Supreme Court granted certification on November 17, 1982, and its original briefing schedule required appellant’s reply brief to be filed by February 8, 1983. The Nebraska Supreme Court follows the practice of setting the case for oral argument the month following the filing of the final brief. It is thus evident that the fears of extraordinary delay expressed by Chief Judge Lay do not stand up to strict scrutiny under the procedures of the Nebraska Supreme Court.