                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2007

McGinley v. McGinley
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5562




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                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 05-5562
                      ____________

                 TIMOTHY McGINLEY;
                CATHERINE McGINLEY,
           Individually and as Husband and Wife

                             Appellants

                              v.

             GEORGE W. McGINLEY, M.D.;
          GEORGE W. McGINLEY, M.D., P.C.,
     Individually and doing business as Optical Effects;
                 WALTER’S PHARMACY
                       ____________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (D.C. No. 04-cv-03500)
           District Judge: Bruce W. Kauffman
                      ____________

        Submitted Under Third Circuit LAR 34.1(a)
                    October 25, 2007

Before: FISHER, STAPLETON and COWEN, Circuit Judges.

                 (Filed: November 1, 2007)
                       ____________

                OPINION OF THE COURT
                     ____________
FISHER, Circuit Judge.

       This is a choice of law case with sad facts. Appellants including Timothy

McGinley (the plaintiff) initiated a medical malpractice action in the United States

District Court for the Eastern District of Pennsylvania against appellees including Dr.

George W. McGinley (the defendant). The District Court entered judgment for the

appellees because a California one-year statute of limitations barred the action. For the

reasons that follow, we will affirm.

                                              I.

       Because we write only for the parties who are familiar with the factual context and

procedural history of the case, we set forth only those facts necessary to our analysis.

From 1989 to 1993, the defendant, who practiced ophthalmology in Pennsylvania,

prescribed his nephew, the plaintiff, narcotic painkillers to treat his carpal tunnel

syndrome. The plaintiff apparently became addicted to the painkillers during this period.

       From 1993 to 2002, the plaintiff sought treatment for his addiction and moved

from Pennsylvania to California. In June 2002, as the result of a work-related injury, he

was hospitalized and treated with narcotic painkillers, resulting in a relapse of his

addiction. After release from the hospital, the plaintiff again received narcotic

painkillers, this time through the mail from the defendant, who remained a Pennsylvania

resident.

       On July 26, 2002, while allegedly under the influence of the painkillers provided

by the defendant, the plaintiff was involved in a single vehicle accident near Walnut

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Creek, California. As a result of the accident, the plaintiff was left with irreparable brain

damage, nerve damage, and other injuries. These injuries have had serious long-term

effects on the plaintiff’s ability to work and function.

       On July 23, 2004, almost two years later, the plaintiff initiated this state-law

medical malpractice action against the defendant. The theory of the case is that the

defendant negligently diagnosed the plaintiff and prescribed the painkillers to him

without any examination of the patient, proximately causing the serious injuries from the

car accident. On December 5, 2005, in a written memorandum and order, the District

Court granted the defendant’s motion for judgment on the pleadings, on the basis that the

applicable statute of limitations barred the plaintiff’s action. The plaintiff filed a timely

notice of appeal.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s decision to grant a motion for judgment on the pleadings under

Fed. R. Civ. P. 12(c). In re McAllister Towing and Transp. Co., 432 F.3d 216, 219 (3d

Cir. 2005). A federal court sitting in diversity must apply the choice of law rules of the

forum state, which is Pennsylvania in the instant case. Kruzits v. Okuma Mach. Tool,

Inc., 40 F.3d 52, 55 (3d Cir. 1994). Under Pennsylvania’s Uniform Statute of Limitations

on Foreign Claims Act (the Borrowing Act), “[t]he period of limitation applicable to a

claim accruing outside this Commonwealth shall be either that provided or prescribed by

the law of the place where the claim accrued or by the law of the Commonwealth,

                                               3
whichever first bars the claim.” 42 PA. CONS. STAT. ANN. § 5521(b). A claim “accrues”

for purposes of section 5521(b) in the state “where as well as when the final significant

event that is essential to a suable claim occurs.” McKenna v. Ortho Pharm. Corp., 622

F.2d 657, 660 (3d Cir. 1980); accord Ross v. Johns-Manville Corp., 766 F.2d 823, 826

(3d Cir. 1985).

       In the case at bar, the District Court properly identified California as the place

where the claim “accrued.” This is because the plaintiff’s car accident, which happened

in California, was the final significant event that was essential to his medical malpractice

claim. In both California and Pennsylvania, damages are a required element of medical

malpractice. Hanson v. Grode, 90 Cal. Rptr. 2d 396, 400 (Cal. Ct. App. 1999); Quinby v.

Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070 (Pa. 2006). Here, the

predominant source of damages is the car accident, after which there were no significant

events that happened to affect the claim.

       It follows under the Borrowing Act that California’s statute of limitations applies

because it bars medical malpractice actions unless filed within “three years after the date

of injury or one year after the plaintiff discovers, or through the use of reasonable

diligence should have discovered, the injury, whichever occurs first.” CAL. CIV. PROC.

CODE § 340.5. The applicable Pennsylvania statute of limitations, by contrast, bars

claims after two years for all negligence actions. See 42 PA. CONS. STAT. ANN.

§ 5524(2). Under California’s statute, then, because the plaintiff here filed his action



                                              4
almost two years after he discovered his injury, i.e., at the time of the car accident, the

District Court properly entered judgment for the defendants.

       The plaintiff’s only rebuttal to the foregoing analysis is that it would be “illogical”

to apply California’s statute of limitations in a case in which California could not exercise

personal jurisdiction over the defendant. But this is beside the point. Even assuming,

arguendo, that the plaintiff’s personal jurisdiction analysis is correct, it is well established

that personal jurisdiction and choice of law are distinct issues. See Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 372 n.4 (3d Cir. 2002); Ballard v. Savage, 65 F.3d 1495,

1501 (9th Cir. 1995). Courts have thus applied a jurisdiction’s statute of limitations

without regard to whether that jurisdiction could exercise personal jurisdiction over the

defendant. E.g., Ins. Co. of N. Am. v. ABB Power Generation, Inc., 690 N.E.2d 1249,

1253 (N.Y. 1997). Therefore, whether or not California could exercise personal

jurisdiction over the defendant does not affect whether any applicable California statute

of limitations should apply.

       The plaintiff has one more arrow in his quiver, however. He argues that the

California statute of limitations that applies is the two-year general personal injury and

wrongful death statute, CAL. CIV. PROC. CODE § 335.1, rather than the one-year medical

malpractice statute, CAL. CIV. PROC. CODE § 340.5. He argues that this is because the

definition of “health care provider” in section 340.5(1) is limited to physicians licensed or

certified in California, which the defendant was not.



                                               5
       Our review of the record indicates, however, that the plaintiff did not raise this

argument before the District Court. “It is well established that failure to raise an issue in

the district court constitutes waiver of the argument.” Brenner v. Local 514, United Bhd.

of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991). It is true that we have

discretion to decide issues that have been waived. Bagot v. Ashcroft, 398 F.3d 252, 256

(3d Cir. 2005).

       However, besides the fact that we have characterized this discretion as

“exceptional,” id., an important factor in exercising the discretion in Bagot was that “the

proper resolution of the legal question, though not exactly simple, is reasonably certain.”

Id. Here, the correct resolution is far from certain. In Chosak v. Alameda County

Medical Center, 63 Cal. Rptr. 3d 184 (Cal. Ct. App. 2007), the intermediate appellate

court in California looked beyond the plain language in section 340.5 to hold that it

applies to “out-of-state doctor[s] legally practicing in California under the licensing and

certification exemptions of [the California Business and Professions Code].” Id. at 194.

Whether or not a further expansion should be made to cover all out-of-state physicians is

a question whose answer is not at all certain.

       Moreover, another consideration in invoking the Bagot exception is whether an

issue’s resolution is of public importance. Bullock v. Dressel, 435 F.3d 294, 300 (3d Cir.

2006). Here, how the federal court of appeals in Philadelphia resolves the applicability of

California’s statute of limitations in a medical malpractice action is not of public



                                              6
importance because it has binding effect only on courts that rarely, if ever, will encounter

the issue again. Therefore, the Bagot exception should not apply in this case.

                                             III.

       Having concluded that the preserved appellate arguments that the plaintiff makes

are without merit, we will affirm the order of the District Court.




                                              7
