                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1597


ANGELIA M. ANDERSON,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:08-cv-00003-CCB)


Argued:   October 25, 2011              Decided:   December 20, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Unpublished Order of Certification of a question of law to the
Court of Appeals of Maryland.


ARGUED:   Byron Leslie Warnken, WARNKEN, LLC, Towson, Maryland,
for Appellant.    Lewis S. Yelin, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.     ON BRIEF: Kerry D.
Staton, Jonathan Schochor, SHOCHOR, FEDERICO & STATON, P.A.,
Baltimore, Maryland, for Appellant.       Tony West, Assistant
Attorney General, Rod J. Rosenstein, United States Attorney,
Thomas M. Bondy, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
                                          ORDER


PER CURIAM:

                             I.    Question Certified

      Angelia Anderson sued the United States under the Federal

Tort Claims Act (“FTCA”) in January 2008 in the U.S. District

Court for the District of Maryland.                  In her complaint, Anderson

alleges that she received negligent medical care at the Veterans

Administration         Medical     Center       in   Baltimore,       Maryland       (“VA

Hospital”) from February through December 2002.                         The district

court granted the government’s motion to dismiss for lack of

subject      matter     jurisdiction,       reasoning        that    Maryland     Code,

Courts      and   Judicial      Proceedings       Article     Section    5-109(a)(1)

constituted a five-year statute of repose that barred Anderson’s

claim.       On   appeal,      Anderson     argues    that    Section    5-109(a)(1)

constitutes a statute of limitations that is preempted by the

FTCA’s statute of limitations.

      The     U.S.     Court      of   Appeals       for    the     Fourth     Circuit,

exercising the privilege afforded it by the Maryland Uniform

Certification of Questions of Law Act, Md. Code Ann., Cts. &

Jud. Proc. §§ 12-601 through 12-613, and Maryland Rule 8-305,

now   certifies       the   following     question     of    Maryland    law    to   the

Court of Appeals of Maryland:



                                            2
     Does Section 5-109(a)(1) of the Courts and Judicial
     Proceedings Article of the Maryland Code constitute a
     statute of limitations or a statute of repose?

     The answer to this question does not appear to be directly

controlled    by   any   Maryland     appellate     decision,   constitutional

provision, or state statute.           The Court of Appeals of Maryland

has referred to Section 5-109 both as a statute of limitations

and a statute of repose, contrast Hill v. Fitzgerald, 501 A.2d

27, 32 (Md. 1985), with Rivera v. Edmonds, 699 A.2d 1194, 1195

(Md. 1997), but no case appears to have conclusively resolved

the issue.

     The district court’s finding that Section 5-109(a)(1) is a

statute of repose stems primarily from a recent opinion of the

Court of Appeals of Maryland discussing the statute, Burnside v.

Wong,   986   A.2d   427,      440   (Md.     2010).    The   answer      to   this

certified     question    is    outcome       determinative   of   this    appeal

because Anderson’s claim may proceed if the district court erred

in concluding that Section 5-109(a)(1) was a statute of repose.

Therefore, the question is properly subject to review by the

Court of Appeals of Maryland on certification.

     We acknowledge that the Court of Appeals of Maryland may

reformulate this question.




                                          3
                       II.     Statement of Relevant Facts

      Anderson first visited the VA Hospital in February 2002,

complaining       of   lower        back       pain.          An    MRI     revealed        scattered

marrow      abnormalities            in        Anderson’s              lumbar      spine      and      a

radiologist recommended a bone scan, which was performed in May

2002 and showed abnormal results.                             Subsequently, a bone marrow

biopsy     was     performed,         resulting           in       a     diagnosis      of        B-cell

lymphoproliferative disease in Anderson’s spine.                                     Anderson was

scheduled to begin chemotherapy in August 2002, but her doctors

determined        instead      that        a    course         of        observation        was     more

appropriate.        Anderson was given a fentanyl patch to control her

pain.      Anderson returned to the VA Hospital in September 2002,

reporting        continuing         pain       on       her     left       side;     her      doctors

responded by increasing her pain medication.

      On    December        19,      2002,       Anderson              complained      at     the    VA

Hospital of increased pain and new symptoms, including pain and

numbness     radiating         to     her       foot.              She     was   discharged          and

instructed to report to the neurology clinic four days later.

Anderson returned to the VA Hospital the next day complaining of

increased pain in her back and an inability to move her legs.

An   MRI   revealed      no    evidence          of      compression.              Anderson        again

returned     to    the    VA      Hospital          on        December       23,    reporting         an

inability to walk or stand and complaining of numbness up to her

breasts.     She was again discharged with instructions to return


                                                    4
for    another        MRI    on     December             26.      Anderson          instead       sought

treatment at another hospital on December 24, where a physical

examination         and     diagnostic          tests      revealed        an    epidural         spinal

tumor compressing her spinal cord.                             Anderson underwent immediate

surgery        to        relieve        the     spinal          compression           and       remained

hospitalized until December 30.

       Nearly        a     year     later,          on    December        17,       2003,       Anderson

initiated           an      administrative                 claim         with       the         Veterans

Administration in Baltimore by filing a completed Standard Form

95 (Claim for Damage, Injury, or Death).                                 She alleged that the

VA    Hospital       failed        to    recognize         the     symptoms         of    progressive

spinal    cord       compression          due       to    an    epidural        spine      tumor    that

developed as a result of her known cancer.                                      She also alleged

that     the    negligent           care       she       received        at     the      VA     Hospital

necessitated             emergency        surgery          on      her        spine,       and     that,

notwithstanding             the     emergency             surgery,        the       VA        Hospital’s

negligence          left    her     with       significant,         permanent            neurological

deficits, severe and permanent disability, and incessant pain

and emotional anguish.

       For nearly four years, Anderson’s claim proceeded through

the    administrative             process,          including       significant               settlement

discussions,             until      it        was        denied     as        not        amenable     to

administrative resolution by letter dated September 26, 2007.

Anderson filed suit in the district court on January 2, 2008.


                                                     5
The government moved to dismiss arguing that Anderson had failed

to file a claim and an expert certificate with the Maryland

Health Care Alternative Dispute Resolution Office (“HCADRO”), as

required     by    Maryland’s        Health      Care     Malpractice         Claims      Act

(codified at Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04).                                The

district court stayed the case to allow Anderson to file the

complaint and certificate with HCADRO.                        Anderson complied and

the district court lifted the stay.

     The    government        then      filed    a    second    motion        to   dismiss,

arguing    that    Section       5-109(a)(1),         which    it    characterized        as

Maryland’s statute of repose for health care malpractice claims,

divested     the    court     of     subject         matter    jurisdiction         because

Anderson    did    not    file     her     federal     suit    within      the     five-year

statutory     period.         In     its    order      granting     the       motion,    the

district    court     noted      that      Maryland     courts      have      referred    to

Section 5-109 as a statute of limitations and that it contains

tolling provisions that are generally inconsistent with statutes

of   repose.        However,         the    district      court      concluded          that,

“particularly in light of the recent reference by the Court of

Appeals in Burnside,” it was “constrained to conclude that the

state’s     highest      court     views     § 5-109(a)(1)          as    a    statute    of

repose.”     J.A. 227 (citing Burnside, 986 A.2d at 440).                               Thus,

the district court granted the government’s motion to dismiss

for lack of subject matter jurisdiction.


                                             6
      The district court denied Anderson’s subsequent motion for

reconsideration,        and   Anderson     timely    appealed      to    this    Court,

assigning error to the district court’s conclusion that Section

5-109(a)(1) is a statute of repose. 1



                    III. Legal Discussion and Relevant
                     Maryland Case Law and Legislation

                       A. The Government’s Limited
                    Waiver of Immunity under the FTCA

      A plaintiff may recover against the United States only to

the   extent    that    it    has    expressly    waived       sovereign      immunity.

Welch     v.   United   States,      409   F.3d   646,     650    (4th   Cir.    2005)

(citing    United    States     v.   Sherwood,      312   US     584,   586    (1941)).

Where the United States has not waived its sovereign immunity, a

plaintiff’s claim against the United States should be dismissed

for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1).              Williams v. United States, 50 F.3d

299, 304 (4th Cir. 1995).



      1
      Anderson also argues on appeal that the district court
erred by failing to find (1) that participation in the mandatory
administrative procedures required by the FTCA tolls the running
of the statutory period prescribed by Section 5-109 until the
administrative process is exhausted, and (2) that the filing of
a claims notice under the FTCA satisfies the requirement under
Section 5-109 that an action for damages be filed within five
years of the time the injury was committed.    We do not certify
these latter two questions.




                                           7
       Congress waived the sovereign immunity of the United States

for certain torts committed by federal employees when it enacted

the FTCA in 1946.            Kerns v. United States, 585 F.3d 187, 194

(4th   Cir.   2009)     (citing    FDIC       v.   Meyer,    510    U.S.   471,   475

(1994)).      However, the FTCA is a limited waiver of immunity,

imposing tort liability on the United States only “in the same

manner and to the same extent as a private individual under like

circumstances,” 28 U.S.C. § 2674, and only to the extent that “a

private person[] would be liable to the claimant in accordance

with the law of the place where the act or omission occurred,”

id. § 1346(b)(1).       In other words, a claimant “has an FTCA cause

of action against the government only if she would also have a

cause of action under state law against a private person in like

circumstances.”       Miller v. United States, 932 F.2d 301, 303 (4th

Cir. 1991).      Thus, the substantive law of each state establishes

the cause of action.          Kerns, 585 F.3d at 194; Unus v. Kane, 565

F.3d 103, 117 (4th Cir. 2009).

       Whereas      substantive           state        law         establishes--and

circumscribes--FTCA causes of action, “federal law defines the

limitations period.”          Miller, 932 F.2d at 303.              This period is

codified in 28 U.S.C. § 2401, which provides, in pertinent part,

that “[a] tort claim against the United States shall be forever

barred   unless    it   is    presented       in   writing   to    the   appropriate

Federal agency within two years after such claim accrues . . .


                                          8
.”   Id.     § 2401(b).         Here,    it   is   undisputed    that    Anderson

satisfied the FTCA statute of limitations by filing Standard

Form 95 within one year of her injury.

     State law may nevertheless speak to the timeliness of a

claim brought under the FTCA, because a state’s enactment of a

statute     of    repose    “creates      a   substantive    right      in   those

protected    to    be   free    from    liability    after   a   legislatively-

determined period of time.”              First United Methodist Church of

Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir.

1989).    By contrast, a statute of limitations is a “procedural

device that operates as a defense to limit the remedy available

from an existing cause of action.”                 Id. at 865.     Thus, “[t]he

distinction      between    statutes     of   limitations    and   statutes    of

repose    corresponds      to   the    distinction    between    procedural    and

substantive laws.”          Goad v. Celotex Corp., 831 F.2d 508, 511

(4th Cir. 1987).           Because statutes of repose are substantive

limitations on liability, an FTCA claim does not lie against the

United States where a statute of repose would bar the action if

brought against a private person in state court.                     See, e.g.,

Simmons v. United States, 421 F.3d 1199, 1202 (11th Cir. 2005)

(affirming dismissal of FTCA action that was filed after period

specified in state statute of repose).

     Thus, the key inquiry in this case is whether Section 5-

109(a)(1) is a substantive statute of repose or a procedural


                                          9
statute of limitations.         If the former, then Anderson’s claim

may be barred, 2 because allowing it to proceed would potentially

impose liability on the government in a different manner and to

a   greater    extent    than   on   a    private    individual    under   like

circumstances.      If    the   latter,       however,   the   FTCA’s   two-year

statute of limitations preempts the state statute and Anderson’s

claim survives because it was properly presented within that

period.



               B. The Statutory Text of Section 5-109(a)

     Section 5-109(a) provides in relevant part as follows:

     An action for damages for an injury arising out of the
     rendering   of  or   failure  to   render professional
     services by a health care provider . . . shall be
     filed within the earlier of: (1) Five years of the
     time the injury was committed; or (2) Three years of
     the date the injury was discovered.

Md. Code Ann., Cts. & Jud. Proc. § 5-109(a).                   The periods are

subject to tolling for minority, incompetency, and fraudulent

concealment.     Id. § 5-109(f) (“Nothing contained in this section


     2
      As noted earlier, Anderson argues that even if Section 5-
109(a)(1) is a statute of repose, the district court erred by
failing to find (1) that participation in the mandatory
administrative procedures required by the FTCA tolls the running
of the statutory period prescribed by Section 5-109 until the
administrative process is exhausted, and (2) that the filing of
a claims notice under the FTCA satisfies the requirement under
Section 5-109 that an action for damages be filed within five
years of the time the injury was committed.




                                         10
may be construed as limiting the application of the provisions

of: (1) § 5-201 of this title that relate to a cause of action

of a mental incompetent; or (2) § 5-203 of this title [relating

to fraudulent concealment].”); Piselli v. 75th St. Med., 808

A.2d 508, 517 (Md. 2002) (holding that both the three- and five-

year   statutory     periods    must    be    tolled      during    a    plaintiff’s

minority).

       The Court of Appeals of Maryland has aptly summarized the

uncertainty in the statutory language:

       [I]t is not clear whether the General Assembly
       intended § 5-109 to be either (A) a five-year statute
       of repose with a provision that allows a defendant to
       cut that period short by up to two years if the
       defendant can show that the plaintiff did not comply
       with the three-year discovery provision, or (B) a
       three-year statute of limitations with a provision
       that could allow the plaintiff to extend that period
       up to five years if the plaintiff can show that he or
       she filed the claim within the three-year discovery
       provision.

Newell v. Richards, 594 A.2d 1152, 1157 (Md. 1991).

       Anderson   makes   three      principal        arguments    to   support   her

view   that   Section     5-109(a)(1)        is   a    statute    of    limitations.

First, she points out that the event that triggers the running

of the statutory period for both the five-year period in (a)(1)

and the three-year period in (a)(2) is an “injury.”                       The Court

of Appeals of Maryland has held that an injury is committed on

“the   date   upon   which     the   allegedly        negligent    act    was   first

coupled with harm.”          Hill, 501 A.2d at 32.                 Thus, Anderson


                                        11
argues that an injury that triggers the running of the statutory

period is not necessarily committed on the date upon which an

allegedly    negligent    act    occurs,     and   that   Section   5-109(a)(1)

thereby “contradicts the fundamental requirement of a statute of

repose, i.e., that it operates from a fixed point in time and

can    terminate    a    cause    of    action     before     injury   occurs.”

Appellant’s Br. 27.

      Anderson     contrasts     this   feature    with     the   ability   of   a

statute of repose to extinguish a plaintiff’s claim before it

accrues, when a plaintiff’s injury fails to materialize prior to

the running of the fixed statutory period.                It is this ability

to extinguish claims prior to their accrual, Anderson argues,

that is the quintessential barometer of a statute of repose.

Id. at 25-26 (citing Hinds v. CompAir Kellogg, 776 F. Supp.

1102, 1105 (E.D. Va. 1991), aff’d per curiam, 961 F.2d 211 (4th

Cir. 1992) (unpublished); Walker v. Montclaire Hous. Partners,

736 F. Supp. 1358, 1361 (M.D.N.C. 1990)).                 Because the running

of    the   statutory    period    commences       upon   “injury,”    Anderson

contends that Section 5-109(a)(1) cannot operate to extinguish a

cause of action before an injury arises and the claim accrues,

and that it thus lacks the substantive quality of a statute of

repose.

      Second, Anderson notes that, as a general rule, statutes of

limitations are subject to tolling whereas statutes of repose


                                        12
are fixed.             However, Section 5-109(f) expressly provides that

both the five-year period in (a)(1) and the three-year period in

(a)(2)       may       be     tolled     in     instances     of    minority,         mental

incompetency,           and   fraudulent      concealment.         Anderson     concludes

from       these    statutory      tolling       provisions     that     “the     Maryland

General         Assembly      provided    further      evidence     that   CJ     §    5-109

should not be interpreted as providing a substantive right to be

free from liability.”             Appellant’s Br. 30.

       Finally, Anderson compares Section 5-109(a)(1) with Section

5-108      of    the    Courts    and    Judicial      Proceedings      Article       of   the

Maryland         Code,      claiming     that    the   latter      is   unmistakably        a

statute of repose and that a comparison of the two statutes

reveals that Section 5-109(a)(1) is a statute of limitations. 3

Section 5-108, concerning injuries after improvements to real

property, provides:

       (a) Except as provided by this section, no cause of
       action for damages accrues and a person may not seek
       contribution or indemnity for damages incurred when
       wrongful death, personal injury, or injury to real or
       personal property resulting from the defective and
       unsafe condition of an improvement to real property
       occurs more than 20 years after the date the entire


       3
      This Court has found Section 5-108 to be a statute of
repose.   See First United, 882 F.2d at 865 (“Maryland courts
have repeatedly recognized [that] § 5-108 is a statute of
repose. . . .”); id. at 866 (refusing to construe Section 5-108
as “provid[ing] anything other than the 20-year repose period”
because it did not permit tolling).




                                                13
      improvement first becomes available for its intended
      use. . . .

      (c) Upon accrual of a cause of action referred to in
      subsections (a) and (b) of this section, an action
      shall be filed within 3 years.

Id. § 5-108(a), (c).

      Anderson claims that Section 5-108 “operates as a statute

of    repose    because    it    (1)   precludes   accrual        of   any   claim,

regardless of when (or if) injury occurs, after a fixed period

of time; (2) is not subject to tolling; and (3) was expressly

intended to confer substantive immunity from suit.”                    Appellant’s

Br. 31. 4      Anderson argues that, conversely, Section 5-109(a)(1)

is a statute of limitations because it requires an injury to

trigger the running of the statute, cannot eliminate a cause of

action before it accrues, is subject to tolling, and does not

evidence an express grant of substantive immunity on medical

malpractice defendants.

      Before     addressing      Anderson’s     arguments,    the       government

describes two features of Section 5-109(a)(1) that it contends

cut   in    favor   of   the    statute’s    construction    as    a   statute   of


      4
      As to the substantive immunity granted by Section 5-108,
Anderson quotes the Revisor’s Note to Section 5-108 when it was
enacted in 1970: “The section is drafted in the form of a
statute of limitation, but, in reality, it grants immunity from
suit in certain instances.”   Carven v. Hickman, 763 A.2d 1207,
1212 (2000) (quoting Revisor’s Note), aff’d sub nom. Hickman ex
rel. Hickman v. Carven, 784 A.2d 31 (2001).




                                        14
repose.       First, the government posits that statutes of repose

are “based on considerations of the economic best interests of

the public as a whole and are substantive grants of immunity

based    on   a   legislative     balance      of    the     respective      rights    of

potential plaintiffs and defendants struck by determining a time

limit beyond which liability no longer exists.”                       Appellee’s Br.

23 (quoting First United, 882 F.2d at 866).                     Because Section 5-

109(a)(1)      was   enacted     to    promote      those     considerations,         the

government argues that the district court properly characterized

it as a statute of repose.

      The government contends further that the Maryland General

Assembly      enacted   Section       5-109(a)(1)      not    out    of   concern     for

court management or to address problems associated with stale or

fraudulent claims--which the government urges are the principal

purposes underlying statutes of limitations--but “ ‘to contain

the     ‘long-tail’     effect    of     the     discovery       rule     in    medical

malpractice cases.’ ”       Id. 25 (quoting Hill, 501 A.2d at 32 (“The

statute is a response to the so-called crisis in the field of

medical malpractice claims.”)).                In so doing, the government

posits that the legislature acted to “promote society’s interest

in maintaining malpractice insurance coverage and managing the

costs    of   malpractice      litigation,”         Newell,    594    A.2d     at   1157,

fulfilling the principal purpose underlying a statute of repose




                                          15
of promoting the “economic best interests of the public as a

whole,” First United, 882 F.2d at 866.

       The    government     contends       that        the    Court    of        Appeals    of

Maryland      confirmed     this    policy       objective      in     Hill,       where    the

court     noted     that      Section        5-109(a)(1)          was        intended        to

“restrict[], in absolute terms, the amount of time that could

lapse between the allegedly negligent treatment of a patient and

the filing of a malpractice claim related to that treatment.”

501 A.2d at 32.           As further evidence of this, the government

points to the legislature’s proscription of judicial tolling to

extend       statutory    limits,        claiming       that    this       limitation        on

judicial      discretion     is     typical       of     statutes       of     repose       and

inconsistent with statutes of limitations.

       The government also argues that a comparison of Section 5-

108 with Section 5-109(a)(1) supports the construction of the

latter as a statute of repose.                   The government emphasizes the

legislative purposes it claims animated the enactment of both

statutes, contending that both stemmed from a “public policy

problem      resulting    from     the    exposure       to    potentially          prolonged

periods of liability by professionals providing important public

services.”       Appellee’s Br. 32.          The government submits that both

statutes were enacted “based on considerations of the economic

best    interests    of     the    public    as     a    whole”      and     “based     on   a

legislative       balance    of     the     respective         rights        of     potential


                                            16
plaintiffs and defendants struck by determining a time limit

beyond which liability no longer exists.”                        First United, 882

F.2d   at   866.      As   such,    the    government          contends     that     both

statutes exhibit the same key feature of statutes of repose and

should both be so construed.

       Responding     to   Anderson’s          first     argument     in     favor    of

construing Section 5-109(a)(1) as a statute of limitations--that

the suffering of an injury triggers the running of the statute,

whereas a typical statute of repose begins to run from the date

of a tortfeasor’s act or omission--the government explains that

“[t]here are sound reasons why a time limit need not be capable

of extinguishing a claim before a plaintiff suffers injury in

order for it to be a statute of repose.”                         Appellee’s Br. 37.

The government contends that, as a general matter, legislatures

must balance competing interests, and, in the case of Section 5-

109(a)(1),    the    Maryland    legislature           decided    that     “its   policy

goals would best be served by measuring the time limit from the

occurrence of an injury.”          Id. 38.

       As for Anderson’s contention that the presence of tolling

provisions renders Section 5-109(a)(1) a statute of limitations,

the government again responds that the legislature’s decision to

include     such    provisions     is   part      of     the     balance    struck    in

addressing    the    underlying     problem.           What    statutes     of    repose

forbid, contends the government, is judicially-created tolling


                                          17
because that would upset the balance struck by the legislature.

The features Anderson relies on to support her view of Section

5-109(a)(1) as a statute of limitations are, according to the

government, instead consistent with a statute of repose.



                         C.    Relevant Maryland Cases

       Exactly a decade after Section 5-109 was enacted in 1975,

Hill presented the Court of Appeals of Maryland with its first

opportunity to interpret the statute, in a question certified

from    the   U.S.     District   Court    for       the    District      of   Maryland

seeking “a determination as to when the three- and five-year

limitation periods begin to run in a case which involves . . . a

continuous course of treatment for a single medical condition.”

501 A.2d at 32.          Hill described Section 5-109 as “Maryland’s

statute of limitations for medical malpractice claims,” id. at

28, that “places a five-year maximum limitation on the filing of

medical    malpractice        claims,”   id.    at    29.        The   court    further

concluded “that the words of § 5-109 expressly place an absolute

five-year     period     of     limitation      on    the        filing   of   medical

malpractice claims calculated on the basis of when the injury

was committed, i.e., the date upon which the allegedly negligent

act was first coupled with harm.”              Id. at 32.

       According to the Hill court, the purpose of the statute was

“to    contain   the    ‘long-tail’      effect      of    the    discovery    rule   in


                                         18
medical malpractice cases by restricting, in absolute terms, the

amount of time that could lapse between the allegedly negligent

treatment of a patient and the filing of a malpractice claim

related to that treatment.”       Id.     The court further described

the statute as a “response to the so-called crisis in the field

of medical malpractice claims.”    Id.

     Responding to the certified question, the court concluded:

     The three- and five-year periods of limitations must,
     therefore, be calculated in accordance with the
     literal language of § 5-109 [beginning upon the date
     in which the allegedly negligent act was first coupled
     with harm].     Indeed, the five-year maximum period
     under the statute will run its full length only in
     those   instances   where  the   three-year   discovery
     provision does not operate to bar an action at an
     earlier date.     And this is so without regard to
     whether the injury was reasonably discoverable or not.

Id. at 32-33. 5

     Three years later, in Geisz v. Greater Baltimore Medical

Center, 545 A.2d 658 (1988), the Court of Appeals of Maryland

considered a case in which the injury to the patient predated

the enactment of Section 5-109.        The patient's survivors brought

a wrongful death and survival action more than ten years after


     5
      Despite the “limitation” nomenclature, the government
argues that the court’s reference to Section 5-109 as “an
absolute five-year period of limitation” that “restrict[s], in
absolute terms, the amount of time that could lapse between the
allegedly negligent treatment of a patient and the filing of a
malpractice claim,” Hill, 501 A.2d at 32 (emphasis added),
compels the statute’s construction as a statute of repose.




                                  19
the patient died of cancer, and the issue presented was whether

the survival claim was barred under the discovery rule of the

general three year statute of limitations in effect prior to the

enactment    of      Section     5-109.        Id.    at        659.        Although     the

applicability      of     Section   5-109      was    not       at    issue,    the    court

consistently described it as a “statute of repose for medical

malpractice claims.”           Id.; see also id. at 660 n.3, 661, 666-67,

and   669   n.9.        Notably,    the   court      stated      that       Section    5-109

“clearly reinforces the policy of repose underlying all statutes

of limitations and caps the discovery rule.”                         Id. at 667.

      The    court      seemed     to   retreat      from        the    Geisz      “repose”

characterization in Jones v. Speed, 577 A.2d 64 (Md. 1990).                               In

Jones, the court described the case as involving “the effect of

Maryland’s    statute      of    limitations      upon      a    medical       malpractice

claim.”     Id. at 65.      Like Hill, the dispute also centered on the

question     of    when    an    injury     was      committed         to    trigger    the

statutory periods in Section 5-109.                    The court concluded that

“the claim was brought within three years of discovery of [the]

injury; and, it is clear that the claim was brought within five

years of the time the injury was alleged to have been committed.

The statute of limitations is therefore not a bar.”                          Id. at 70.

      Since Jones, opinions of the Court of Appeals of Maryland

have predominantly characterized Section 5-109 as a statute of




                                          20
repose, albeit not consistently. 6                   For example, in 1991, the

court in Newell stated, “In malpractice actions against health

care providers, in lieu of the general statute of limitations,

there is a special statute of repose, § 5-109 of the Maryland

Code .      .   .   .”     594   A.2d    at    1156.     The    court    nevertheless

concluded that the plaintiff’s claim “was filed within the five-

year       limitations     period.”           Id.   at   1157   (emphasis        added).

Addressing          the   parties’      contentions,      the    court    explained,

“Although Richards [the alleged tortfeasor] argues that Newell

[the plaintiff] is attempting to avoid the three-year limitation

in the statute, Newell may just as logically argue that Richards

is attempting to avoid the five-year limitation in the statute.”

Id. (emphasis added).             After restating some of the historical

and policy arguments from Hill, the court concluded that “it is

obvious that the primary purpose of [Section 5-109] is to create

a total bar to malpractice actions brought after five years from

the date of the alleged negligent treatment . . . .”                     Id. 7


       6
      The lone exception is Rios v. Montgomery County, 872 A.2d 1
(Md. 2005), in which the court recounted that in an earlier case
it had “concluded that the statutes of limitations contained in
Section 5-109 as applied to minors violated Article 19 of the
Maryland Declaration of Rights as an unreasonable restriction.”
Id. at 21.
       7
      We note that Newell refers to date of “the alleged
negligent treatment” as the trigger for the five-year statutory
period.   594 A.2d at 1157.    By its plain terms, however, a
plaintiff’s “injury” is the trigger under Section 5-109.
(Continued)

                                              21
      In Rivera, a 1996 case, the Court of Appeals of Maryland

again   described     Section       5-109       as   “the    medical     malpractice

statute of repose.”         699 A.2d at 1195.              The case also involved

the   determination    of    when     an    injury    occurs     for     purposes   of

triggering   the    statutory    periods.            The    Court   of   Appeals    of

Maryland affirmed the judgment of the Court of Special Appeals,

which had reversed the trial court’s determination on summary

judgment that the plaintiff’s claim was time barred, holding

instead that genuine issues of material fact existed as to when

the   plaintiff    suffered     her    injury.         Notably,     the    Court    of

Special Appeals appeared to reject a characterization of Section

5-109 as a statute of repose, finding that the failure of an

amendment to Section 5-109 proposed in 1987 demonstrated “that

the General Assembly did not intend to create an ironclad rule

that a medical malpractice claim would be barred if filed more

than five years after the health care provider’s wrongful act.”

Edmonds v. Cytology Servs. of Md., Inc., 681 A.2d 546, 557 (Md.

Ct. Spec. App. 1996).        The proposed amendment would have “ma[d]e

it express that the statutory periods begin to run from the date

of the ‘allegedly wrongful act or omission’ in place of the




Pursuant to Hill, an injury is committed on “the date upon which
the allegedly negligent act was first coupled with harm.”    501
A.2d at 32.




                                           22
common     law    term       ‘injury.’ ”              Id.    (quoting     a    position      paper

prepared by the Legislative Office of the Governor).

      According to the Court of Special Appeals, the rejection of

the amendment illustrated that the Maryland legislature, on the

one hand, sought “to combat the ‘long-tail effect’ on medical

malpractice       insurance,”            while    also        “wish[ing]       to    lessen      the

potential unfairness to victims of malpractice by not overly

restricting their ability to present their claims.”                                 Id. at 557.

The   court       concluded             that     the        legislature       reconciled         the

competing interests by providing a five-year cut off in Section

5-109(a)(1)        that      would       run     from       the   date    of    the       “injury”

resulting        from     the     health       care     provider’s        wrongful         act    or

omission, rather than the actual date of the act or omission.

Id. at 557-58.

      To    be     clear,         the    proposed       amendment,        and       the    court’s

analysis of it, did not directly address the question of whether

Section     5-109       is    a    statute       of    limitations        or    a    statute      of

repose.     Nevertheless, the import of an “injury,” as opposed to

a defendant’s act or omission, serving as the trigger for the

statutory periods constitutes one of the key disputes between

the parties in this case as to whether Section 5-109(a)(1) is a

statute of repose or a statute of limitations. 8

      8
      The court further explained,
(Continued)

                                                 23
       Several other opinions of the Court of Appeals of Maryland

have described Section 5-109 as a statute of repose.                          In Green

v. North Arundel Hospital Association, 785 A.2d 361 (Md. 2001),

the    court       referred    to    “the        statute    of   repose    codified   in

[Section 5-109], which requires a medical malpractice action to

be    filed    within     five      years    after    the    time   ‘the    injury    was

committed.’ ”            Id. at 368.         This case is notable because it

appears       to    be   the     first      in    which    the   court     specifically

described the five-year period of subsection (a)(1) as a statute

of repose, rather than a generic description of Section 5-109 in

its entirety as either a statute of repose or a statute of

limitations.

       The Court of Appeals of Maryland noted this distinction in

Piselli,       where      it     discussed         “the     three-year     statute     of

limitations of section 5-109(a)(2),” 808 A.2d at 513 (quoting

the U.S. Court of Appeals Certification Order), and the “five-

year statute of repose for medical malpractice actions,” id. at




       The Maryland Legislature could have followed the great
       majority of jurisdictions by enacting a statute
       providing for the commencement of limitations on the
       date    of   the    defendant’s  alleged    “act”   or
       “omission.” . . . Despite the plethora of statutes in
       other states to this effect, our Legislature did not
       adopt such a provision.

Id. at 556-57.




                                             24
519, but nevertheless held generically that “mandating that the

three and five-year limitations periods run against a minor’s

tort claim from the time the minor is 11 years old, or under a

few circumstances 16 years old, is an unreasonable restriction

upon a child’s remedy and the child’s access to the courts,” id.

at 524 (emphasis added).

      Finally,        in     Burnside,       the    Court       of    Appeals       of    Maryland

again referred to Section 5-109 as both a statute of limitations

and statute of repose.                 First, the Burnside court quoted the

entirety       of    Section        5-109(a),       labeling         it   “the      statute     of

limitations.”           986    A.2d     at    440.         However,       the       court    later

referred to its earlier analysis in Rivera, which it claimed

“also involved the application of the statute of repose to a

failure    to       diagnose    medical       malpractice            claim.”        Id.      Thus,

although the district court below relied on Burnside in favoring

a   construction        of    Section    5-109        as    a    statute       of    repose,    we

cannot be as confident that Burnside meaningfully resolves the

question.

      In sum, it does not appear that the Maryland cases have

resolved    definitively            whether        Section      5-109     is    a    statute    of

repose,    a     statute       of    limitations,          or    both,     with      subsection

(a)(1) serving as a statute of repose and subsection (a)(2) a

statute     of      limitations.             The     lack       of    definitive          guidance

necessitates certification of this question.


                                               25
               IV.     The Parties and Their Counsel

     Counsel of record for Anderson are Byron Warnken, Warnken,

LLC, 300 East Joppa Road, Suite 303, Towson, Maryland, 21286,

and Kerry Staton and Jonathan Schochor, Schochor, Federico &

Staton, P.A., 1211 St. Paul Street, Baltimore, Maryland, 21202.

Counsel of record for the United States are Thomas Bondy and

Lewis Yelin, Civil Division, U.S. Department of Justice, 950

Pennsylvania Avenue, N.W., Washington, D.C. 20530.



                            V.   Conclusion

     Pursuant to the privilege made available by the Maryland

Uniform Certification of Questions of Law Act, we hereby ORDER:

(1) that the question stated above be certified to the Court of

Appeals of Maryland for answer; (2) that the Clerk of this Court

forward to the Court of Appeals of Maryland, under the official

seal of this Court, a copy of this Order, together with the

original or copies of the record before this Court to the extent

requested by the Court of Appeals of Maryland; and (3) that the

Clerk of this Court fulfill any request for all or part of the

record simply upon notification from the Clerk of the Court of

Appeals of Maryland.

                                                 QUESTION CERTIFIED




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