                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                 2020 UT 7


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

    JOHANNAH BRIGHT, PIA MERLO-SCHMUCKER, and LISA TAPP,
                          Appellees,
                                      v.
  SHERMAN SORENSEN, M.D.; SORENSEN CARDIOVASCULAR GROUP;
      ST. MARK’S HOSPITAL; and IHC HEALTH SERVICES, INC.,
                          Appellants.

                            No. 20180528
                       Heard October 7, 2019
                       Filed February 18, 2020


         On Consolidated Appeal of Interlocutory Orders

                     Third District, Salt Lake
                   The Honorable Laura S. Scott
                         No. 170906790
                  The Honorable Patrick Corum
                         No. 170906130
                  The Honorable Barry Lawrence
                         No. 170904956

                                Attorneys:
       Troy L. Booher, Beth E. Kennedy, Salt Lake City;
     Rhome D. Zabriskie, Provo; Rand Nolen, David Hobbs,
                Houston, Texas, for appellees

       Michael J. Miller, Kathleen J. Abke, Scarlet R. Smith,
    Eric P. Schoonveld, Tawni J. Anderson, Nathan E. Dorsey,
Alan C. Bradshaw, Chad R. Derum, John (Jack) T. Nelson, Salt Lake
   City; Andrew A. Warth, Nashville, Tennessee, for appellants

  ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,
                         BRIGHT v. SORENSEN
                        Opinion of the Court


 in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
                    and JUSTICE PETERSEN joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 Johannah Bright, Pia Merlo-Schmucker, and Lisa Tapp are
former patients of Dr. Sherman Sorensen. They allege that Sorensen
performed unnecessary heart surgery on them at Salt Lake City’s
St. Mark’s Hospital and Murray’s Intermountain Medical Center
between 2008 and 2011. Around 2017, each of these patients saw
advertising for a medical malpractice attorney who specializes in
actions arising from similar surgeries. They sought review of their
legal claims by the Utah Department of Occupational and
Professional Licensing (DOPL) Prelitigation Review Panel, which
found the claims meritorious and issued certificates of compliance.
Each former patient then filed suit against Sorensen, his business
entity, and either St. Mark’s Hospital or IHC Health Services, Inc.,
which operates the Intermountain Medical Center.
    ¶2 These cases were considered separately—before three
different district judges—in the proceedings below. In each of the
three cases the defendants moved to dismiss on the ground that the
plaintiffs’ claims were time-barred under the Utah Health Care
Malpractice Act (the Act). Citing the Act’s two-year limitations
period and its four-year repose period, UTAH CODE § 78B-3-404,
defendants asserted that the claims were time-barred given that the
latest surgery was performed in 2011 and the lawsuits weren’t filed
until 2017. They also contended that the time bar was not tolled by
either the “foreign object” or “fraudulent concealment” exceptions
set forth in the statute. See id. § 78B-3-404(2). Defendants opposed
tolling under the latter exception on the ground that the plaintiffs
had failed to allege fraudulent concealment with the “particularity”
required by rule 9(c) of the Utah Rules of Civil Procedure. And one
of the defendants raised a separate challenge to plaintiffs’ “negligent
credentialing” claim, asserting that it was barred by retroactive
application of a statute enacted in 2011. See UTAH CODE § 78B-3-425.
    ¶3 The motions to dismiss were denied in large part. All three
district judges held that defendants had failed to establish that
plaintiffs’ claims were time-barred as a matter of law. One of the
three judges (in the Bright case) granted the motion to dismiss as to
the negligent credentialing claim (against St. Mark’s).
   ¶4 We granted interlocutory appeal and consolidated the three
cases for review. We affirm the decisions denying the motions to

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dismiss on time-bar grounds and reverse the decision dismissing the
negligent credentialing claim. We hold that the fraudulent
concealment and foreign object tolling exceptions in Utah Code
section 78B-3-404 can extend either the limitations or repose periods.
And we clarify that our pleading rules govern only claims and
defenses, not responses to anticipated defenses. Because the
plaintiffs raised their fraudulent concealment argument as a response
to an anticipated affirmative defense (that the suits were time-
barred), we conclude that it was subject to neither the general
pleading rules under rule 8 nor the specialized pleading rules for
fraud under rule 9(c). On that basis, we agree with the district courts
that the plaintiffs have sufficiently alleged fraudulent concealment to
avoid dismissal, and that the sufficiency of the evidence is a matter
for summary judgment or trial.
    ¶5 We also hold that the foreign object exception applies in
cases in which “foreign” material is wrongfully left in a patient, not
(as here) where the material left is what was intended by a surgery.
And we conclude that the Act does not retroactively bar plaintiffs’
negligent credentialing claims—reversing the Bright court on this
point. We remand to allow the plaintiffs to begin discovery aimed at
establishing the timeliness of their complaints under the fraudulent
concealment exception to Utah Code section 78B-3-404.
                          I. BACKGROUND
    ¶6 The surgical procedure at the center of these lawsuits is
aimed at closing a hole in the wall of tissue between the upper
chambers of the heart. This hole, a congenital defect, is referred to as
either a “patent foramen ovale” (PFO) or an “atrial septal defect”
(ASD), depending on the nature of the defect. For some people with
these heart defects, there is a risk that a blood clot will be forced
through the hole, travel to the brain, and cause a stroke. Closing a
PFO or ASD requires permanently implanting a medical device in
the heart. Over time, new tissue grows over the implanted device
and completely closes the hole.
    ¶7 Between 2002 and 2012, Sorensen, a cardiologist, held
privileges at several Salt Lake City area hospitals, including
St. Mark’s Hospital in Salt Lake City and Intermountain Medical
Center in Murray. Over that decade, Sorensen performed these PFO
and ASD closures on approximately four thousand patients at
St. Mark’s and Intermountain Medical Center.
   ¶8 Bright, Merlo-Schmucker, and Tapp were among those
patients who accepted Sorensen’s recommendation to let him
perform PFO or ASD repair. Sorensen performed Tapp’s procedure

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                        Opinion of the Court


at Intermountain Medical Center on September 18, 2008, Bright’s
procedure at St. Mark’s on December 15, 2009, and
Merlo-Schmucker’s procedure at St. Mark’s on February 10, 2011.
    ¶9 According to the plaintiffs, Sorensen told them the surgeries
were necessary to reduce their “extreme risk of debilitating stroke”
and that the medical community recommended the procedure for
persons in their condition. The plaintiffs further allege that other
physicians raised concerns about Sorensen’s medical practices to
IHC and St. Mark’s, complaining that Sorensen was regularly
performing unnecessary, invasive cardiac procedures on his patients.
In plaintiffs’ view, about twenty-five percent of healthy adults have
the relevant heart defects, but the medical consensus since 2003 has
been that PFO (or ASD) closure is appropriate only rarely—when a
patient has experienced recurrent, unexplained strokes. But plaintiffs
allege that Sorensen performed ten to twenty times more of these
heart procedures than the national average for interventional
cardiologists. And none of the plaintiffs suffered from recurrent
strokes or had other medical conditions that would justify a PFO or
ASD closure.
    ¶10 In 2011 IHC conducted an internal audit of Sorensen’s
medical practice. The plaintiffs allege that the reviewers concluded
that Sorensen had performed “multiple, medically unnecessary”
PFO closures and thus “represented a threat to the health and safety
of the patients treated at IHC.” That June, IHC suspended Sorensen
for two weeks. And in September, IHC moved again to suspend
Sorensen’s cardiac privileges. It also threatened to permanently
suspend him and report his conduct to the National Practitioner
Database. Sorensen resigned from the IHC medical staff in late 2011
before it could take either of these actions.
   ¶11 Around February 2014, IHC sent a letter to its patients who
had undergone PFO closure with a particular device implant to warn
them about a problem with the medical device. But the letter made
no mention of Sorensen’s suspensions, resignation, or potential
abuse of the PFO procedure.
    ¶12 Bright and Merlo-Schmucker make related allegations
concerning Sorenson’s relationship with St. Mark’s. They allege that
St. Mark’s retained Sorensen on its medical staff until his retirement
in 2011, even though it was aware that IHC had suspended Sorensen
for performing unnecessary heart procedures.
    ¶13 In 2015, some of Sorensen’s former patients began to see
advertising by a medical malpractice attorney who specializes in
actions arising from PFO and ASD procedures. The plaintiffs in this
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                         Opinion of the Court


case allege that they only realized they might have undergone an
unnecessary heart procedure once they saw this advertising.1
   ¶14 In January 2017 the plaintiffs applied for prelitigation
review of their medical malpractice claims as required at that
time under the Act. 2 UTAH CODE § 78B-3-412(1) (since held
unconstitutional by Vega v. Jordan Valley Med. Ctr., LP, 2019 UT 35,
¶ 25, 449 P.3d 31). Bright and Merlo-Schmucker filed their requests
with the Utah Division of Occupational and Professional Licensing
(DOPL) review panel on January 3. Tapp submitted her request on
January 17.
   ¶15 The DOPL prelitigation panel found each patient’s claims
meritorious and issued certificates of compliance with the
prelitigation procedures. Following the prelitigation review process,
Bright, Melo-Schmucker, and Tapp filed separate suits against
Sorensen and the hospitals where their procedures were performed.
    ¶16 The plaintiffs brought claims for negligence, negligent
credentialing, and fraud. The amended complaints alleged that
Sorensen, IHC, and St. Mark’s took affirmative acts to fraudulently
conceal the unnecessary surgeries. Specifically, the complaints
alleged that Sorensen and the hospitals “created false statements and
documents to conceal the fact that Sorensen was performing
medically unnecessary closures,” going so far as to falsify patients’
medical charts.
   ¶17 Bright, Merlo-Schmucker, and Tapp join more than a
thousand other patients with pending medical malpractice actions
against Sorensen and the hospitals where he performed PFO and
ASD closures. The claims are similar, and in the cases consolidated
before us, substantially the same.


_____________________________________________________________
   1 Tapp alleges that she was put on notice in 2017, while Merlo-
Schmucker and Bright allege in their complaints, filed on September
26, 2017, and October 23, 2017, respectively, that they were put on
notice “recently.”
   2 This was the relevant date for the Utah Health Care Malpractice
Act’s statutes of limitations and repose. UTAH CODE § 78B-3-416(3)(a)
(“The filing of a request for prelitigation panel review under this
section tolls the applicable statute of limitations . . . .”); Jensen v.
Intermountain Healthcare Inc., 2018 UT 27, ¶ 34, 424 P.3d 885 (ruling
that a request for prelitigation review tolls the statute of repose).


                                   5
                         BRIGHT v. SORENSEN
                         Opinion of the Court


    ¶18 In the Bright, Merlo-Schmucker, and Tapp cases, Sorensen
and the hospitals filed motions to dismiss on the ground that the
plaintiffs’ claims are barred by the Utah Health Care Malpractice
Act’s four-year statute of repose. UTAH CODE § 78B-3-404(1). Citing
this statute, the defendants asserted that the plaintiffs’ claims had
not been filed within four years after the date of the allegedly
unnecessary surgeries and the time bar was not tolled by either the
“fraudulent concealment” or “foreign object” exceptions set forth in
the statute. See id. § 78B-3-404(2). As to “fraudulent concealment,”
the defendants asserted that the claims should be dismissed because
the plaintiffs had failed to plead fraudulent concealment with
sufficient particularity. Sorensen also argued that the negligent
credentialing claims should be dismissed on the ground that
negligent credentialing is no longer a cause of action under Utah
Code section 78B-3-425.
    ¶19 All three district courts denied the defendants’ motions to
dismiss in large part. Each court concluded that the plaintiffs could
proceed with their claims under the fraudulent concealment
exception, which provides a one-year extension to the statute of
repose. UTAH CODE § 78B-3-404(2)(b). On the question whether the
plaintiffs had actually filed within one year of discovering the
alleged fraudulent concealment, the courts concluded that this was a
matter for summary judgment or trial—not for a motion to dismiss.
The district court judges disagreed on one final point. The court in
the Bright case granted the motion to dismiss on the negligent
credentialing claim, while the courts in the Merlo-Schmucker and
Tapp cases allowed the negligent credentialing claims to proceed.3
    ¶20 Before the start of discovery, Sorensen, St. Mark’s, and IHC
filed a request for leave to file an interlocutory appeal in each of the
three cases. We granted that request and agreed to consolidation of
the cases on appeal.

                           II. DISCUSSION

   ¶21 For medical malpractice claims, Utah Code section
78B-3-404(1) establishes a two-year limitations period and a
four-year repose period. Such claims must be “commenced within
two years after the plaintiff or patient discovers, or through the use

_____________________________________________________________
   3 The Merlo-Schmucker and Tapp courts did not address
negligent credentialing in their orders.

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                         Opinion of the Court


of reasonable diligence should have discovered the injury,
whichever first occurs, but not to exceed four years after the date of
the alleged act, omission, neglect, or occurrence.” UTAH CODE § 78B-
3-404(1).
    ¶22 The statute also sets forth exceptions in the form of tolling
provisions. Tolling is provided for actions where there is an
allegation “that a foreign object has been wrongfully left within a
patient’s body,” and actions “where it is alleged that a patient has
been prevented from discovering misconduct on the part of a health
care provider because that health care provider has affirmatively
acted to fraudulently conceal the alleged misconduct.” Id.
§ 78B-3-404(2).
   ¶23 The above-quoted provisions form the backdrop of most of
the arguments before us on this interlocutory appeal. One additional
provision is also relevant—a 2011 amendment to the Utah
Healthcare Malpractice Act, which eliminated “negligent
credentialing” as a cause of action. See UTAH CODE § 78B-3-425.
    ¶24 On appeal defendants raise five sets of issues relating to the
operation of these provisions: (a) whether the statute’s tolling
exceptions apply to the repose period (or just the limitations period);
(b) whether allegations of “fraudulent concealment” are subject to a
requirement of heightened pleading under civil rule 9(c); (c) whether
defendants were entitled to dismissal in light of plaintiffs’ allegations
of fraudulent concealment; (d) whether the tolling exception for a
“foreign object” wrongfully left within a patient can apply here; and
(e) whether amendments to the statute retroactively bar negligent
credentialing claims.
    ¶25 We affirm the decisions denying defendants’ motions to
dismiss and endorse the plaintiffs’ positions for the most part. We
hold that the tolling provisions apply to both the repose period and
the limitations period, conclude that there is no heightened or other
pleading requirement for a plaintiff in responding to an anticipated
affirmative defense, uphold the determination that the question of
fraudulent concealment is a matter for summary judgment or trial,
determine that the foreign object exception does not apply, and hold
that the 2011 amendments do not apply retroactively.
             A. Tolling and the Four-Year Repose Period
    ¶26 A threshold question is whether the four-year repose period
in subsection 404(1) is subject to the tolling provisions in subsection




                                   7
                         BRIGHT v. SORENSEN
                         Opinion of the Court


404(2). Sorensen claims that the “foreign object” and “fraudulent
concealment” exceptions in section 404(2) apply only to the two-year
limitations period in section 404(1). 4 He views the four-year repose
period as a hard-and-fast time-bar that can never be extended—even
in actions involving a foreign object left in a patient or fraudulent
concealment of alleged misconduct.
    ¶27 Sorensen thus views the four-year repose period as a
categorical bar. He sees this as the whole point of a statute of
repose—to set a hard cutoff for claims filed after a given event
(without regard to discovery of the basis for a claim). And he views
tolling as purely a matter for a statute of limitations, which is (at
least often) triggered not by an event but by discovery of the basis
for a claim.
    ¶28 Sorensen’s view may reflect the ordinary operation of
statutes of repose generally.5 But it is incompatible with the text and
structure of this statute of repose. And it is of course this statute of
repose that we are called upon to interpret.
    ¶29 Subsection 404(1) presents both the two-year limitations
period and the four-year repose period in a unitary time-bar
provision. And subsection 404(2), in turn, modifies the time-bar
provision in its entirety. The prefatory clause of 404(2) is telling. It
states that the tolling provisions set forth in 404(2) apply
“Notwithstanding Subsection (1).” Id. § 78B-3-404(2). This is a clear
signal that the tolling provisions that follow (for actions involving a
“foreign object” or “fraudulent concealment”) are general limitations
on “Subsection (1)”—not just a cherry-picked subpart of that


_____________________________________________________________
   4 The plaintiffs argue the opposite—that the exceptions modify
only the repose period. But the plaintiffs’ position is similarly
incompatible with the terms and structure of the statute. And the
cases the plaintiffs cite, such as Day v. Meek, 1999 UT 28, 976 P.2d
1202, interpret an earlier version of the Act, with structure quite
distinct from that in place today.
   5See Cal. Pub. Emp’s’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042,
2051 (2017) (“By establishing a fixed limit, a statute of repose
implements a legislative decision that as a matter of policy there
should be a specific time beyond which a defendant should no
longer be subjected to protracted liability” (internal citation and
quotation marks omitted)).

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                        Opinion of the Court


subsection. We see no way to read the terms of section 404
otherwise.
   ¶30 The exceptions in subsection 78B-3-404(2) thus apply to both
the limitations period and the repose period in subsection
78B-3-404(1). As with the limitations period, the repose period is
subject to extension if the statutory tolling provisions are satisfied.
Thus, the discovery of a foreign object left in a patient or the
fraudulent concealment of alleged misconduct may extend either the
limitations period or the repose period by one year.
    ¶31 In so holding we reject a further argument advanced by
defendants—that this construction of the statute could give a litigant
less than two years to file suit. Defendants posit a circumstance in
which fraud is discovered early on, perhaps one month after a
medical procedure is performed. If the filing period is determined
solely by the one-year period of limitation following discovery,
defendants contend that the plaintiff would have only one year and
one month to file her claim.
    ¶32 We disagree. Defendants’ position is again rooted in a
misunderstanding of the interaction between subsections 404(1) and
404(2)—and the function of the “Notwithstanding” clause in 404(2).
The one-year extensions provided in subsection 404(2) are not
independent, freestanding limitations periods. They are exceptions
that may extend the time periods in subsection 404(1). This, again, is
confirmed by the “Notwithstanding” clause—a legal construct that
“clearly signals the drafter’s intention that the provisions of the
‘notwithstanding’ section override conflicting provisions of any
other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993).
    ¶33 This confirms our interpretation and avoids the problem
alluded to by defendants. The foreign object and fraudulent
concealment provisions are not independent time bars; they are
exceptions that may extend the otherwise “conflicting” limitations
and repose periods found in Utah Code section 78B-3-404(1).
        B. Fraudulent Concealment and Heightened Pleading
   ¶34 Another question concerns the pleading burden of a plaintiff
with regard to the exception for “fraudulent concealment.”
Defendants’ position is straightforward: Utah Code section
78B-3-404(2) speaks of “fraudulent concealment,” and civil rule 9(c)
requires allegations of “fraud” to be made with particularity.
Because the complaints in this action purportedly failed to allege
fraudulent concealment with sufficient particularity, defendants
assert that the complaints were subject to dismissal under rule 9(c).


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                          BRIGHT v. SORENSEN
                         Opinion of the Court


    ¶35 Defendants’ point has some facial plausibility. But it misses
a threshold nuance. Our pleading rules speak only to particularity in
pleading, and pleadings are limited to allegations of claims and
defenses. See UTAH R. CIV. P. 7 (pleadings allowed include
complaints and answers but not anticipated responses to affirmative
defenses); id. 8 (prescribing the level of detail to be included in
“claims for relief” and “affirmative defenses”); id. 9(c) (requiring, as
an exception to rule 8, more particularity as to certain allegations).6
Any allegations of “fraudulent concealment” in the complaints in
these actions were thus not governed by our pleading rules because
fraudulent concealment is not an element of a plaintiff’s claim, but
an anticipatory response to an expected affirmative defense.
    ¶36 The contents of plaintiffs’ “claims for relief” are governed by
rules 8 and 9(c). But plaintiffs’ claims for relief are claims sounding
in medical malpractice. Fraudulent concealment is raised as a
response to an anticipated affirmative defense—that plaintiffs’
claims are time-barred. Granted, plaintiffs included some allegations
about defendants’ alleged fraudulent concealment. But plaintiffs had
no obligation to do so. That obligation is not found in our rules of
procedure, since as noted above, those rules speak only to the
requirements of a plaintiff in pleading “claims for relief” and to the
requirements of a defendant in pleading “affirmative defenses.”
    ¶37 And the obligation is likewise not found in Utah Code
section 78B-3-404(2). Defendants say that the statute includes a
requirement of particularized pleading. But we see nothing in the
statute that speaks to this question. “[I]n an action where it is alleged
that a patient has been prevented from discovering misconduct on
the part of a health care provider because that health care provider
has affirmatively acted to fraudulently conceal the alleged
misconduct,” the statute says that “the claim shall be barred unless
commenced within one year after the plaintiff or patient discovers,
or through the use of reasonable diligence, should have discovered
the fraudulent concealment, whichever first occurs.” UTAH CODE
§ 78B-3-404(2)(b). There is a reference here to a party “alleg[ing]”
fraudulent concealment. But in context, the statute is speaking only
_____________________________________________________________
   6 Rule 9 “supplements but does not supplant Rule 8[’s] notice
pleading” standard. United States ex rel. Grubbs v. Kanneganti, 565
F.3d 180, 186 (5th Cir. 2009). It thus governs the level of particularity
required for allegations of fraud only if such allegations go to a claim
for relief or an affirmative defense.

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                         Opinion of the Court


to what must be established to invoke the exception to the statute of
limitations or repose. How the allegation must be made is not dealt
with. And that is a matter governed by the Utah Rules of Civil
Procedure.7
   ¶38 The legislature, in any event, lacks the power to amend our
rules of procedure except by a joint resolution adopted by a
supermajority vote. See Brown v. Cox, 2017 UT 3, ¶¶ 17–18, 387 P.3d
1040. There is no indication that those requirements were fulfilled
here. And unless and until the legislature follows those requirements
we are in no position to conclude that it has altered our established
rules of procedure.
   ¶39 For these reasons we hold that a plaintiff has no obligation
to plead fraudulent concealment under Utah Code section
78B-3-404(2) with particularity—or even at the level of “notice
pleading” required by rule 8(a). Because fraudulent concealment
under this statute is not an element of a defense, but just an
anticipatory response to an expected affirmative defense, there is no
pleading obligation on the plaintiff’s part. The plaintiff is entitled to
ignore the question of fraudulent concealment altogether—to wait to
see whether the defendant will raise a time-bar defense in an answer,
and to address that defense through other procedural mechanisms as
they present themselves later.
    ¶40 Not all plaintiffs will choose that route, of course. And the
plaintiffs in these cases did not choose to stay mum. They included
some allegations on the question of fraudulent concealment in their
complaints. And we are not suggesting that these allegations were
irrelevant—or in any way insulated the plaintiffs’ claims from
summary dismissal.


_____________________________________________________________
   7 At oral argument in this case, counsel for the defendants raised
the concern that the constraints of our heightened pleading rules are
a necessary brake on the possibility that a plaintiff might make bare,
unsupported allegations of fraudulent concealment in a bid to open
up a “fishing expedition” in discovery. But this misses the fact that
our rules contain other limitations on such practice—including the
rule 11 requirement that all allegations “have evidentiary support”
or at least (if “specifically so identified”) be “likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.” UTAH R. CIV. P. 11(b)(3). And our
decision today in no way eliminates any of these limits.


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                          Opinion of the Court


     ¶41 It has oft been observed that a plaintiff may plead her way
out of court by including too much detail (or the wrong kind of
detail) in a complaint.8 That could certainly happen in a case like this
one. On a motion for judgment on the pleadings, or for failure to
plead a claim for which relief may be granted, the court is to accept
the plaintiffs’ factual allegations as true. See Peck v. State, 2008 UT 39,
¶ 2, 191 P.3d 4. With that in mind, a plaintiff who includes detailed
allegations of relevance to an anticipated statute of limitations
defense (and her anticipated response thereto) does so at her peril.
Where a motion to dismiss is filed based on the anticipated defense,
the district court is entitled to either rule on the pleadings or to allow
the parties to convert the motion to a motion for summary judgment
if further factual development is necessary.
    ¶42 This is the framework we endorsed in our decision in Tucker
v. State Farm Mutual Automobile Insurance Co., 2002 UT 54, 53 P.3d
947. There we said that a 12(b)(6) motion is an appropriate vehicle
for seeking dismissal on statute of limitations grounds. Id. ¶¶ 8–9.
But we emphasized that the basis for such a dismissal must be
evident on the face of the complaint. Id. ¶ 8. And where the detail
necessary to establish a basis for dismissal on statute of limitations
grounds is not set forth on the face of the complaint, we
acknowledged the discretion of the district court to either deny the
motion or open the door to conversion to a motion for summary
judgment. Id. ¶¶ 10–11.
    ¶43 The cases cited by the defendants are not to the contrary.
These cases hold that a defendant may file a motion to dismiss a
facially untimely complaint under rule 12(b)(6). See, e.g., id. ¶¶ 7–11;
Boettcher v. Conoco Phillips, Co., 721 F. App’x. 823, 824–25 (10th Cir.
2018).9 When the plaintiff pleads the basis for a motion to dismiss on
_____________________________________________________________
   8 See, e.g., Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116
(D.C. Cir. 2000) (explaining that “it is possible for a plaintiff to plead
too much: that is, to plead himself out of court by alleging facts that
render success on the merits impossible”); Jackson v. Marion Cty., 66
F.3d 151, 153 (7th Cir. 1995) (noting that “a plaintiff
can plead himself out of court by alleging facts which show that he
has no claim, even though he was not required to allege those
facts”).
   9 See also Lee v. Rocky Mtn. UFCW Unions & Emp’rs Tr. Pension
Plan, 13 F.3d 405 (table), 1993 WL 482951 (10th Cir. Nov. 23, 1993);
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1357
                                                     (continued . . .)
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                         Opinion of the Court


statute of limitations grounds and such a motion is filed, the case law
says that “the plaintiff has the burden of establishing a factual basis
for tolling the statute.” Aldrich v. McCulloch Props., Inc., 627 F.2d
1036, 1041 n.4 (10th Cir. 1980). That is correct so far as it goes. When
a complaint is facially untimely, a plaintiff must affirmatively
advance an exception to the applicable statute of limitations to avoid
dismissal. But it does not follow that a plaintiff who wishes to invoke
such an exception must do so in compliance with rules 8 and 9. The
exception remains a response to a statute of limitations defense. It is
thus outside the domain of rules 8 and 9. The plaintiff’s “burden”
therefore, is not a pleading burden, but a burden of proof or
persuasion in response to a defendant’s motion to dismiss. A
plaintiff could carry that burden, in other words, by advancing legal
and factual support for the alleged exception to the time-bar
defense—in material that may lead to the conversion of the motion
to dismiss to a motion for summary judgment.
   ¶44 Most of the other cases cited by the defendants are in line
with this view. Granted, we have said that the 9(c) particularity rule
extends to a plaintiff’s allegation of a claim for fraud or a defendant’s
assertion of an affirmative defense sounding in fraud. 10 And in a
summary judgment setting, we have concededly required a party
advancing an allegation of fraud (even in response to an affirmative
defense) to carry the burden of proving fraud.11 But our cases have
never held that the pleading requirements of our rules extend to a
mere response to an anticipated affirmative defense.


_____________________________________________________________
Motions to Dismiss—Practice under Rule 12(b)(6) (“[C]ase law
makes clear[] the complaint also is subject to dismissal under Rule
12(b)(6) when its allegations indicate the existence of an affirmative
defense that will bar the award of any remedy; but for this to occur,
the applicability of the defense has to be clearly indicated and must
appear on the face of the pleading to be used as the basis for the
motion”).
   10  See State v. Apotex Corp., 2012 UT 36, ¶ 2, 282 P.3d 66
(affirmative claim); Armed Forces Ins. Exch. v. Harrison, 2003 UT 14,
¶¶ 1, 16–18, 70 P.3d 35 (affirmative claim); Williams v. State Farm Ins.
Co., 656 P.2d 966, 972 (Utah 1982) (affirmative defense).
   11See Norton v. Blackham, 669 P.2d 857, 858 (Utah 1983); Chapman
By and Through Chapman v. Primary Children’s Hosp., 784 P.2d 1181,
1185–86 (Utah 1989).


                                   13
                          BRIGHT v. SORENSEN
                          Opinion of the Court


    ¶45 The closest we have come is in dicta in Chapman By and
Through Chapman v. Primary Children’s Hospital, 784 P.2d 1181 (Utah
1989). In Chapman, this court held that the fraudulent concealment
exception to the Utah Health Care Malpractice Act was satisfied
when plaintiffs made an independent claim for fraudulent
concealment (rather than simply alleging fraudulent concealment to
invoke the statutory tolling exception). Id. at 1184–85. With that in
mind, the Chapman court assumed the existence of a requirement
that fraudulent concealment alleged as a response to an affirmative
defense be pleaded with particularity. Chapman found the fraudulent
concealment allegations in that case “sufficiently clear and specific”
to show that “the requirement of rule 9(b)[12] ha[d] been met.” Id. at
1186. But the question presented in today’s case was never directly
addressed. We never decided whether a mere response to an
anticipated affirmative defense is subject to rules 8 and 9 because we
were not faced with a case in which particularized pleading was
lacking. Chapman, moreover, was decided on summary judgment.13
    ¶46 For these reasons, the Chapman court’s assumption that
particularity is required for a response to an affirmative defense is
mere dicta. And dicta pertaining to our rules of procedure implicates
minimal reliance interests and, accordingly, little stare decisis weight.
See Eldridge v. Johndrow, 2015 UT 21, ¶¶ 35–36, 345 P.3d 553 (noting
that the degree of reliance on a precedent is a factor in whether to
afford stare decisis deference); see also Payne v. Tennessee, 501 U.S. 808,
828 (1991) (explaining that “[c]onsiderations in favor
of stare decisis are at their acme in cases . . . where reliance interests
are involved” and that “the opposite is true in cases such as the
present one involving procedural and evidentiary rules”).
    ¶47 Chapman merely assumed, without deciding, that
particularity is required to allege fraudulent concealment in response
to an anticipated affirmative defense (untimeliness). It left the door
open for this court to reconsider the question in a case like this one

_____________________________________________________________
   12Rule 9 has been amended and restructured in the time since
Chapman and some of the other cases cited here. The particularity
requirement that is now in 9(c) used to be in 9(b).
   13 The same goes for our decision in Norton, 669 P.2d at 858. That
case was also decided on summary judgment. See id. And any
references to a particularity-in-pleading requirement for a response
to an anticipated defense were pure dicta.

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                         Opinion of the Court


where it is squarely presented. In doing so today, we hold that a
response to an affirmative defense is not governed by the pleading
requirements of rules 8 and 9 of the Utah Rules of Civil Procedure.14
And we repudiate any dicta to the contrary in Chapman.
        C. Plaintiffs’ Allegations of Fraudulent Concealment
    ¶48 The next question is whether defendants were entitled to
dismissal in light of the plaintiffs’ allegations of fraudulent
concealment. Our rejection of the 9(c) argument goes a long way
toward resolving this question. Because plaintiffs had no burden of
pleading fraudulent concealment (with particularity or otherwise),
the only question is whether they pleaded themselves out of court
with the detail they chose to include in their complaints—by
pleading detail that was not required, but that nonetheless
established that their claims were time-barred as a matter of law.
And we conclude that they did not.
    ¶49 Under section 404(2)(b) the first question is whether
plaintiffs were “prevented from discovering misconduct on the part
of a health care provider because that health care provider has
affirmatively acted to fraudulently conceal the alleged misconduct.”
UTAH CODE § 78B-3-404(2)(b). If such fraudulent concealment is
shown, an otherwise time-barred claim is timely if “commenced
within one year after the plaintiff or patient discovers, or through the
use of reasonable diligence, should have discovered the fraudulent
concealment, whichever first occurs.” Id.
    ¶50 Plaintiffs in no way pleaded a basis for dismissal under
these provisions. Bright, Merlo-Schmucker, and Tapp each alleged in
their complaints that Sorensen and the hospitals “took affirmative
steps to conceal Plaintiff[s’] cause[s] of action.” They also alleged
that “[b]ecause of Defendants’ concealment of material facts and
misleading conduct, Plaintiff[s] [were] not aware of [their] causes of
action.” Specifically, plaintiffs alleged that Sorensen and the
hospitals “created false statements and documents to conceal the fact
that Sorensen was performing medically unnecessary closures,”
including false medical charts.

_____________________________________________________________
   14Our decision in Russell Packard Development, Inc. v. Carson, 2005
UT 14, 108 P.3d 741, is not controlling because the rule 9(c) question
was not raised. But the case is in line with our decision here, in that it
found a prima facie showing of fraudulent concealment sufficient to
defeat a motion to dismiss on statute of limitations grounds.


                                   15
                         BRIGHT v. SORENSEN
                         Opinion of the Court


    ¶51 Plaintiffs further alleged that they first realized they had
potential causes of action soon before filing suit in 2017. They
asserted that “a reasonable plaintiff would not have discovered the
cause[s] of action earlier” and that “[p]laintiff[s] did not know, nor
should have known, of the causes of action against Defendants prior
to being put on notice of Defendants’ potential liability” because
they “neither discovered, nor reasonably should have discovered,
the facts underlying [their] causes of action before any proffered
statute of limitations period expired.”
    ¶52 Plaintiffs thus made all of the allegations that the Act
requires in order to toll the statute of limitations period. Again, they
had no obligation to plead the terms and conditions of fraudulent
concealment. Because they nonetheless chose to do so, the question
is whether they provided a basis for dismissal as a matter of law on
the face of their complaints. They clearly did not.
   ¶53 We affirm the district courts’ denials of the defendants’
motions to dismiss on this basis. In so doing we do not suggest that
the plaintiffs’ position on fraudulent concealment is meritorious. Nor
do we foreclose the possibility of disposition of the fraudulent
concealment question as a matter of law—on a future motion for
summary judgment, for example, after any discovery or other
necessary proceedings.
                   D. The Foreign Object Exception
   ¶54 The next question concerns the applicability of the “foreign
object” exception under Utah Code section 78B-3-404(2)(a). This
exception provides that if an “allegation against the health care
provider is that a foreign object has been wrongfully left within a
patient’s body, the claim shall be barred unless commenced within
one year after the plaintiff or patient discovers, or through the use of
reasonable diligence should have discovered, the existence of the
foreign object wrongly left in the patient’s body, whichever first
occurs.” UTAH CODE § 78B-3-404(2)(a).
    ¶55 Plaintiffs ask us to endorse a construction of “foreign object”
that encompasses the medical devices that were placed in their
bodies during the surgeries in question. They cite a sense of foreign
encompassing anything that “does not exist naturally in the body.”
That is one sense of foreign. See Foreign, AMERICAN HERITAGE
DICTIONARY (5th ed. 2011) (defining “foreign” as “not natural;
alien”). But it is not the only sense of the term. Sometimes foreign
means “[s]ituated in an abnormal or improper place in the body and
typically introduced from outside.” See id.

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                          Opinion of the Court


     ¶56 The choice between these senses of foreign is the key to the
applicability of the foreign object exception. A medical device, after
all, is foreign in the sense of not existing naturally in the body, but not
foreign in the sense of being “in an abnormal or improper place in the
body.” So we must thus choose between the unnatural and improper
place senses of foreign to resolve this case.
   ¶57 We have identified various means of resolving a contest
between competing senses of a statutory term. One approach is to
look for the more ordinary sense of the term as used in a database of
naturally occurring language—a linguistic corpus. 15 We have
pursued that avenue here. We have searched for uses of the term
“foreign object” in the News on the Web (NOW) Corpus in the
context of medical procedures. 16 This kind of search allows us to
assemble empirical data on the range of uses of “foreign object” as a




_____________________________________________________________
   15 See Richards v. Cox, 2019 UT 57, ¶¶ 19–20, 450 P.3d 1074
(describing the advantages of corpus linguistic analysis in
identifying ordinary meaning); State v. Rasabout, 2015 UT 72,
¶¶ 57-63, 356 P.3d 1258 (Lee, A.C.J., concurring) (elaborating
further).
   16  The NOW corpus is available at https://www.english-
corpora.org/now/. It “contains 9.0 billion words of data from
web-based newspapers and magazines from 2010 to the present
time.” Id. We began by searching for “foreign object” within five
words of the collocates “surgery” and “procedure,” but these
searches yielded only six and two concordance lines of text,
respectively. So instead we looked through all concordance lines of
text associated with the top 100 collocates that show up most
frequently within five words of the phrase “foreign object”—
searching for concordance lines relating to medical procedures or
surgery. Collocates with relevant concordance lines of text included
“bodies”, “body”, “caused”, “causing”, “immune”, “inside”,
“patient”, “penis”, “presence”, “putting”, “remove”, “retained”,
“surgery”, and “vagina.” We also performed a similar search in the
Corpus of Contemporary American English (COCA)—a corpus we
have employed in prior cases. See Richards, 2019 UT 57, ¶ 21. But we
found only three concordance lines of text that fit our search
criteria—not enough data to be useful.


                                    17
                          BRIGHT v. SORENSEN
                          Opinion of the Court


phrase. 17 It also allows us to look for the use of this term in the
context of relevance here—medical procedures. 18 By examining
“concordance lines” of text from a corpus, we can discern whether
and to what extent ordinary speakers of English speak of a “foreign
object” in the context of surgery in reference to all things not existing
naturally in the body or only in reference to things in an abnormal or
improper place in the body. We have done that here.
    ¶58 In this instance, however, our corpus analysis was
inconclusive. 19 We found thirty-four concordance lines of text
meeting our search criteria, and the above two senses of foreign were
about evenly represented: sixteen of the concordance lines evidenced
the improper place sense of “foreign object” (in that they involve items
left unintentionally after surgery) 20 and eighteen evidenced the

_____________________________________________________________
   17See Richards, 2019 UT 57, ¶¶ 18–19 (noting that “dictionaries
cannot provide us with . . . contextual phrasal meaning,” but corpus
analysis can).
   18 This can be important, as the meaning of a term or phrase may
be affected by the pragmatic or linguistic context in which it is used.
See Richards, 2019 UT 57, ¶ 21 (noting that corpus linguistic analysis
has an advantage in that “[i]t allows us to search for real-world
usage of a word or phrase in the appropriate linguistic context”);
Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning,
127 YALE L.J. 788, 821–24 (2018) (explaining how semantic, syntactic,
and pragmatic context can affect the meaning of words or phrases).
   19See Lee & Mouritsen, supra note 18, at 875 (acknowledging that
corpus analysis will not always yield data that is sufficiently
conclusive to uncover ordinary meaning).
   20 Examples of this sense of “foreign object” in NOW include
references to “surgical scissors” left inside a patient during an
appendix operation, Doctors remove ‘scissors’ from woman’s belly, TIMES
INDIA,         (May            1,         2016,         2:08        PM),
https://timesofindia.indiatimes.com/city/chennai/Doctors-
remove-scissors-from-womans-belly/articleshow/52068797.cms; a
“30 millimetre needle” left in a child’s gums after a dental procedure,
Dentist leaves 30 millimetre needle in child’s gum, DAILY NATION
(May 28, 2018), https://www.nation.co.ke/news/Dentist-leaves-30-
millimetre-needle-in-child-s-gum-/1056-4583032-e66ljf/;         and      a
“surgical hook” left inside a patient’s body after a hysterectomy
operation, Surgical hook left inside patient’s body removed, NEW INDIAN
                                                          (continued . . .)
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                           Cite as: 2020 UT 7
                         Opinion of the Court


unnatural sense of “foreign object” (in that they involve implants or
medical devices left intentionally).21
    ¶59 The data, while inconclusive, are nonetheless useful. They
tell us that the phrase “foreign object” is used in the context of
surgery to refer commonly to both an item left in an improper place
and an item that is unnatural to the body. And that requires us to
look to other interpretive tools to identify the ordinary meaning of
the statutory text in this linguistic setting.22
    ¶60 One important tool is an examination of the structural and
linguistic context of the statute in question. See Olsen v. Eagle
Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465. A statutory term may
often be ambiguous when read in isolation. But we do not read
statutory text “in isolation.” Id. We read it in light of “the relevant
context of the statute (including, particularly, the structure and
language of the statutory scheme).” Id. And that context may often
eliminate the apparent ambiguity. See id. ¶ 13 (noting that “[t]he fact
that the statutory language may be susceptible of multiple meanings
does not render it ambiguous; ‘all but one of the meanings is
ordinarily eliminated by context’” (quoting Deal v. United States, 508
U.S. 129, 131–32 (1993)).

_____________________________________________________________
EXPRESS        (Aug.         20,       2016,      6:38        AM),
https://www.newindianexpress.com/states/kerala/2016/aug/20/
Surgical-hook-left-inside-patients-body-removed-1511148.html.
   21  Examples of this sense of “foreign object” in NOW include
references to organ transplants, Gift of Life: Cartersville couple takes
part in national kidney registry’s paired exchange program, DAILY TRIB.
NEWS (Aug. 11, 2018), http://www.daily-tribune.com/stories/gift-
of-life,19622; stents, NTNU researches testing use of new removable stent
in the lungs, NEWS MED. (Jan. 12, 2017), https://www.news-
medical.net/news/20170112/NTNU-researchers-testing-use-of-new-
removable-stent-in-the-lungs.aspx; and intrauterine devices, Women
aren’t being warned about the dangers of Mirena IUDs, NEWS.COM.AU
(April             25,            2018,            7:56            AM),
https://www.news.com.au/lifestyle/health/health-
problems/women-arent-being-warned-about-the-dangers-of-
mirena-iuds/news-story/854f86588ccc2647e34266f7694eb2c8.
   22  See Lee & Mouritsen, supra note 18, at 875–76 (noting that
“inconclusive data” about which of two senses is more common may
tell us to look to other tools of interpretation).


                                   19
                          BRIGHT v. SORENSEN
                         Opinion of the Court


   ¶61 Here the statutory context does eliminate the ambiguity. In
the context of the language and structure of the foreign object
exception to the statutory time-bars, “foreign object” cannot be
viewed to encompass all objects that are merely unnatural to the
body; it can only be viewed to extend to objects that are in an
improper place.
    ¶62 The statute identifies the “discovery” of a foreign object as
the moment at which this exception is triggered. UTAH CODE
§ 78B-3-404(2)(a). And discovery presupposes the placement of an
object that was not the intended point of the surgery. See Discover,
AMERICAN HERITAGE DICTIONARY (5th ed. 2011) (defining “discover”
as “[t]o learn about for the first time in one’s experience”). That
forecloses the unnatural sense of “foreign object.” Sorensen’s patients
could not be said to have later discovered the placement of a medical
device that was the very point of their surgery. So the term discovery
confirms that foreign objects are things left by mistake—in an
improper place.
    ¶63 That conclusion is reinforced by the statute’s reference to
“foreign object[s] wrongfully left in [a] patient’s body.” UTAH CODE
§ 78B-3-404(2)(a) (emphasis added). There is nothing wrongful about
the placement of sutures or medical devices that are the intended
design of a surgery. Those things may be said to be foreign in the
sense of being unnatural to the body. But the statutory reference to
wrongful makes clear that an object is foreign in this statute only if it
was in an improper place.
    ¶64 We reject the plaintiffs’ conception of “foreign object” on
this basis. In light of the language and structure of the statute, we
hold that the “foreign object” exception extends only to objects
wrongfully left in an improper place. The exception thus includes
implements used during surgery but meant to be removed (like a
sponge or clamp), or objects accidentally introduced into the body
during surgery (like a Junior Mint 23 ). But it does not extend to
medical devices or implants that are the very point of a medical
procedure.
_____________________________________________________________
   23 See Seinfeld: The Junior Mint (NBC television broadcast Mar. 18,
1993) (Jerry speaking to George about Kramer accidentally dropping
a Junior Mint from an elevated observatory in an operating room,
where it fell “into the patient,” George wondering how the surgeons
could “not notice it,” and Jerry explaining that “it’s a little mint”—“a
Junior Mint”).

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                           Cite as: 2020 UT 7
                         Opinion of the Court


   ¶65 Medical implants are not transformed into discoverable,
wrongfully placed foreign objects when a patient later concludes that
a surgery was unnecessary. We reject the plaintiffs’ argument on the
above grounds and hold that the foreign object exception is
inapplicable in the circumstances of this case.

                       E. Negligent Credentialing
    ¶66 The final question presented concerns the viability of
plaintiffs’ negligent credentialing claims. Our legislature foreclosed
the viability of such claims in a statute enacted in 2011. UTAH CODE
§ 78B-3-425 (enacting as “the policy of this state that the question of
negligent credentialing, as applied to health care providers in
malpractice suits, is not recognized as a cause of action”).
   ¶67 St. Mark’s acknowledges that the surgeries in question were
performed prior to the effective date of this provision. But it
nonetheless asks us to apply this statute retroactively, and thus to
hold that plaintiffs Bright and Merlo-Schmucker are barred from
asserting claims for negligent credentialing.24
    ¶68 This position is foreclosed by our decision in Waddoups v.
Noorda, 2013 UT 64, ¶ 13, 321 P.3d 1108. In the Waddoups case we
expressly held that “section 78B-3-425 of the Utah Code does not
apply retroactively to bar negligent credentialing claims that arose
prior to its enactment.” Id. We reinforce that decision here. And we
thus reject the position advanced by St. Mark’s and reverse the
district court in the Bright case (the only court to have ruled on this
issue), which dismissed Bright’s negligent credentialing claim under
Utah Code section 78B-3-425.

                          III. CONCLUSION
    ¶69 We affirm the denial of defendants’ motions to dismiss. In
so doing we conclude that the statutory tolling provisions in Utah
Code section 78B-3-404(2) apply to both the two-year limitations
period and the four-year repose period in section 78B-3-404(1). We
also hold that responses to affirmative defenses are not subject to the
pleading requirements of rules 8 and 9 of the Utah Rules of Civil
Procedure. And we hold that the “foreign object” exception in
section 78B-3-404(2) does not apply here and that negligent
credentialing claims are not foreclosed by retroactive application of


_____________________________________________________________
   24   IHC makes no such argument as to plaintiff Tapp.


                                  21
                        BRIGHT v. SORENSEN
                        Opinion of the Court


section 78B-3-425. We accordingly remand for further proceedings
consistent with this opinion.
   ¶70 In remanding we are not endorsing the timeliness of
plaintiffs’ claims under the “fraudulent concealment” exception. We
are simply upholding the plaintiffs’ opportunity to develop and
present evidence in support of this exception, through discovery and
subject to further motions under applicable rules of civil procedure.




                                  22
