            Case: 16-16715     Date Filed: 08/17/2017   Page: 1 of 14




                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                                 No. 16-16715
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:15-cv-00176-WLS



KENNETH E. BULLINGTON,

                                                 Plaintiff - Appellee,

versus

M. C. PRECISE,
DMD,
JON F. STRENGTH,
DMD,
DAVID N. STRENGTH,
DMD,
MICHAEL C. PRECISE,
DMD, P.A.,
d.b.a. Dixieland Dental,
DIXIELAND DENTAL,

                                                 Defendants - Appellants.
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                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                  (August 17, 2017)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Defendants Michael Precise (“M.C. Precise”), Jon Strength, David Strength,

and Dixieland Dental (“Dixieland”) appeal the district court’s denial of their

motion to dismiss plaintiff Kenneth Bullington’s complaint. Bullington filed a civil

action in Georgia state court against the defendants, alleging that they committed

medical malpractice by negligently removing teeth from Bullington’s right jaw

without accounting for radiation treatments to the jaw. The defendants removed the

case to federal district court and moved to dismiss the complaint as barred by

Georgia’s five-year statute of ultimate repose for medical malpractice claims. See

O.C.G.A. § 9-3-71(b). The district court denied the defendants’ motion,

determining that they were equitably estopped from asserting the statute-of-repose

defense because they agreed to enter into an agreement with Bullington tolling

“any limitations period (i.e. statute of limitations or statute of repose).”

      After thorough review, we affirm.




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                            I. FACTUAL BACKGROUND

A.     Bullington’s Dental Care and Jaw Injuries

       Plaintiff Bullington is a resident of Worth County, Georgia. Defendant Drs.

M.C. Precise, Jon Strength, and David Strength are dentists and employees of

defendant Dixieland, a regional dentistry practice in Midland City, Alabama. 1

       In 2009, Bullington was diagnosed with metastatic cancer involving the left

and right tonsils. Bullington received treatment for the cancer which included

radiation treatment to his left and right jaw. Since January 15, 2010, Bullington has

remained cancer free.

       On July 28, 2010, Bullington sought dental care at Dixieland. On August 11,

2010, defendant Dr. Jon Strength of Dixieland removed two teeth from

Bullington’s right jaw. Dr. Jon Strength did not consult with Bullington’s treating

radiation oncologist or prescribe Bullington hyperbaric oxygen before or after the

tooth extractions.

       Between September 22, 2010, and May 11, 2011, Bullington made five

additional visits to Dixieland. During these visits, Bullington was seen by Drs. Jon

Strength, David Strength, and M.C. Precise. During these visits, the defendants did

not take any x-rays of Bullington’s jaw or give Bullington hyperbaric oxygen.



       1
       Bullington’s complaint alleges that Dixieland “is an entity owned and/or operated by
M.C. Precise, Jon F. Strength and/or David N. Strength.”
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      On September 25, 2012, Bullington sought dental care with King Family

Dental Care, P.C. (“King”) in Albany, Georgia. On August 19, 2013, a King

dentist extracted seven teeth from Bullington, including several from his right jaw.

      On September 10, 2013, Bullington returned to Dixieland and obtained a

panoramic x-ray of his right jaw. Dr. David Strength entered a clinical note

showing the x-ray as “normal” and did not recommend Bullington for hyperbaric

oxygen or additional consultation concerning his right jaw. Bullington alleges that

the September 10, 2013 x-ray showed “an area of necrosis,” or decay, in the right

jaw, near where Dr. Jon Strength had extracted two teeth in August 2010.

      In March 2014, Bullington presented to an oral surgeon who examined

Bullington’s lower right jaw and diagnosed him with osteoradionecrosis (bone

death due to exposure to radiation and loss of blood supply due to unmanaged

infection) that was compounded by a right jaw fracture. According to the oral

surgeon, Bullington’s symptoms “were consistent with prior extractions by a

general dentist in the right mandible.” Following the diagnosis, Bullington

underwent several surgeries to remove part of his right jaw.

B.    Tolling Agreement

      At some point thereafter, Bullington and the defendants began to discuss

possible legal action, as well as a potential settlement. On August 6, 2015, the

defendants and Bullington entered into a tolling agreement.


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      According to a later March 7, 2016 affidavit by defendants’ counsel,

Bullington’s counsel prepared the initial draft of the tolling agreement. This initial

draft stated that the parties agreed to toll “any defense based on the statute of

limitations,” but it did not mention the tolling of any statute of repose.

      Prior to the parties’ signing of the tolling agreement, Bullington’s counsel

emailed defendants’ counsel, stating: “I realized I needed to slightly revise the

references to the limitation periods to make clear the intent that it would cover the

repose period or st[a]tute of limitations.” Defendants’ counsel, an attorney licensed

in Alabama, asserts that he “made no representations to [plaintiff Bullington’s]

counsel as to whether the statute of repose could be tolled under Georgia law.”

Bullington’s counsel submitted a revised draft of the tolling agreement which

added language tolling “any period of limitations (i.e. statute of limitations or

statute of repose).” The parties then signed the revised tolling agreement. The

relevant portion of the revised, and final, agreement read:

      The parties hereto agree that the running of any limitations period (i.e.
      statute of repose of limitations or statute of repose) shall be tolled and
      suspended from and including August 6, 2015 to and including
      September 23, 2015.

The agreement also contained language stating that the defendants “would prefer to

avoid having a lawsuit filed against [them] for any and all potential claims related

to [the defendants’ dental services].”



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C.    Procedural History

      On September 23, 2015, the last day of the parties’ agreed-to tolling period,

Bullington filed a complaint for professional negligence against the defendants in

the Superior Court of Dougherty County, Georgia.

      Through the complaint, Bullington alleged that defendants Drs. David

Strength and Jon Strength breached their duty of care by extracting two of

Bullington’s teeth on August 11, 2010, without consulting Bullington’s treating

radiation oncologist, appropriately considering Bullington’s medical history,

discussing the particular risks of the extraction with Bullington, or providing

hyperbaric oxygen. As to Dr. David Strength alone, Bullington alleged that, on

September 10, 2013, Dr. Strength failed to appropriately read the panoramic x-ray

of Bullington’s mouth and recommend care based on a visible “wound on the

mandible.” As to Drs. David Strength, Jon Strength, and M.C. Precise, Bullington

alleged that each dentist failed to document any informed consent with Bullington

regarding the specific and serious risks related to his tooth extractions. As to

defendant Dixieland, the complaint included a vicarious liability claim against

Dixieland under a theory of respondeat superior for the negligence of the three

named dentist-defendants.




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D.    Motion to Dismiss

      On October 28, 2015, the defendants timely removed the action to the

United States District Court for the Middle District of Georgia. On November 4,

2015, the defendants moved to dismiss Bullington’s complaint for lack of

jurisdiction.

      In the motion to dismiss, the defendants asserted that Bullington’s claims

relating to “the alleged negligent acts occurring on August 11, 2010” (i.e. the

extraction of two teeth from Bullington’s right jaw) were time-barred because

Bullington filed the claims on September 23, 2015, outside of the five-year statute

of repose (which closed on August 11, 2015). The defendants asserted that the

parties’ August 6, 2015 tolling agreement did not impact this statute-of-repose

defense because, under Georgia law, “the medical malpractice statute of repose

may not be tolled for any reason.” Simmons v. Sonyika, 614 S.E.2d 27, 30 (Ga.

2005).

      On September 21, 2016, the district court denied the defendants’ motion to

dismiss. The district court noted that “[t]he complaint does not allege any facts

which would allow the statute [of repose] to be extended.” However, the district

court determined that the defendants were “estopped from claiming the statute of

repose as a defense” in this case because the August 6, 2015 tolling agreement




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“‘lull[ed Bullington] into a false security’ and caused him to delay the filing of the

instant action.”

       Citing Esener v. Kinsey, 522 S.E.2d 522 (Ga. Ct. App. 1999), the district

court stated that a defendant could be equitably estopped from asserting a statute-

of-repose defense where there is: (1) evidence of a defendant’s fraud; or (2)

evidence of “other conduct on which the plaintiff reasonably relied in forbearing

the bringing of a lawsuit.” Id. at 524. The district court noted that it was “unable to

find any cases in which a Georgia court has considered what ‘other conduct’ is

sufficient to equitably estop a defendant from raising the statute of repose.”

However, in this case, the district court determined that the tolling agreement was

evidence of such “conduct on which the plaintiff reasonably relied” in failing to

bring suit.2

E.     Motion for Reconsideration

       On October 4, 2016, the defendants filed a motion for reconsideration of the

district court’s September 21, 2016 order denying the defendants’ motion to

dismiss. On October 20, 2016, the district court denied the defendants’ motion for


       2
          In its September 21, 2016 order denying the defendants’ motion to dismiss, the district
court ordered Bullington to amend his complaint and allege additional facts supporting the
district court’s jurisdiction. On October 5, 2016, Bullington filed an amended complaint adding
factual allegations that the defendants, by way of the August 6, 2015 tolling agreement, were
equitably estopped from asserting a statute-of-repose defense. Bullington also added allegations
that he relied on the defendants’ representations in waiting until September 23, 2015, to file his
initial complaint.


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reconsideration. The district court clarified that the defendants’ “wrongful

conduct” in this case was their “acting to cause delay and subsequently acting to

take advantage of that delay.” The district court analogized the facts of this case to

a Seventh Circuit case, Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067 (7th Cir.

1978), which the Georgia Court of Appeals had cited as support for the proposition

that equitable estoppel arises from “fraud or other conduct on which the plaintiff

reasonably relied in forbearing the bringing of a lawsuit.” See Hill v. Fordham, 367

S.E.2d 128, 132 (Ga. Ct. App. 1988) (emphasis added).

       On October 21, 2016, the defendants timely appealed. 3




       3
         In their October 4, 2016 motion for reconsideration, the defendants also requested
certification for appellate review of the district court’s September 21, 2016 denial of the
defendants’ motion to dismiss, pursuant to 28 U.S.C. § 1292(b) and “the ‘collateral order’
doctrine.” On October 20, 2016, the district court denied certification under § 1292(b) because,
though the defendants had shown grounds for appellate review under the collateral order
doctrine, those grounds lay within § 1291 and were appealable as of right.
        We agree with the district court that the September 21, 2016 order is appealable under
§ 1291 under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct.
2806, 2817 (1985); Green v. Brantley, 941 F.2d 1146, 1148-49 (11th Cir. 1991). Because, in this
case, the district court’s September 21, 2016 order squarely addresses a central statute-of-repose
issue which is separate from the merits, and because the defendants’ right under the statute of
repose to otherwise be free from defending the suit would be effectively lost in the absence of an
immediate appeal, appellate review under the collateral order doctrine is proper. This situation is
similar to the qualified immunity defense under which we accept appellate review under the
collateral order doctrine. See Tinney v. Shores, 77 F.3d 378, 380 (11th Cir. 1996) (per curiam)
(“[T]his Court has jurisdiction to review interlocutory appeals from orders denying summary
judgment based on qualified immunity.”); see also Green, 941 F.2d at 1149-50.
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                                  II. DISCUSSION

A.    Standard of Review

      “We review the denial of appellant’s motion to dismiss de novo as to the

law, but we apply the clear error standard to any findings of fact.” S & Davis Int’l,

Inc. v. The Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000) (citation

omitted). Whether the established facts give rise to an equitable estoppel is a

question of law, but “the constituent elements of estoppel constitute questions of

fact, and the district court’s findings on these matters must be upheld unless clearly

erroneous.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1323 (11th Cir.

1989) (per curiam).

B.    Applicable Law

      Under Georgia law, “in no event may an action for medical malpractice be

brought more than five years after the date on which the negligent or wrongful act

or omission occurred.” O.C.G.A. § 9-3-71(b). This statute of repose “is absolute

. . . destroy[ing] the previously existing rights so that, on the expiration of the

statutory period, the cause of action no longer exists.” Simmons, 614 S.E.2d at 29

(quoting Wright v. Robinson, 426 S.E.2d 870, 871-72 (Ga. 1993)). “Unlike statutes

of limitation, statutes of repose may not be ‘tolled’ for any reason.” Id. at 30.

      However, if evidence “of defendant’s fraud or other conduct on which the

plaintiff reasonably relied in forbearing the bringing of a lawsuit” is found to exist,


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“then the defendant, under the doctrine of equitable estoppel, is estopped from

raising the defense of the statute of repose.” Esener, 522 S.E.2d at 524. “The

statute of repose is not tolled by fraud, but fraud, instead, gives rise to the doctrine

of equitable estoppel, which prevents the defendant from asserting the defense of

the statute of repose.” Id.

C.    Discussion

      On appeal, the defendants assert that Georgia courts since Esener have

“ma[d]e clear that equitable estoppel is only warranted when a defendant’s

wrongful conduct causes a plaintiff to miss filing within the repose period” and

that estoppel contrarily does not apply “absent evidence that the defendant

concealed information necessary for the plaintiff to file within the repose period.”

See Osburn v. Goldman, 603 S.E.2d 695, 697 (Ga. Ct. App. 2004); Hutcherson v.

Obstetric & Gynecologic Assocs. of Columbus, P.C., 543 S.E.2d 805, 807 (Ga. Ct.

App. 2000). The defendants argue that, because they did not add the statute-of-

repose language in the tolling agreement or make any representations about the

enforceability of such language under Georgia law, they have not committed any

wrongful conduct and should not have been estopped from asserting their statute-

of-repose defense.

      However, the Georgia authorities on which the defendants rely are not

inconsistent with the state-law guidance that equitable estoppel applies to fraud or


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“other conduct on which the plaintiff reasonably relied” in forbearing suit. See

Hill, 367 S.E.2d at 132. In both Osburn v. Goldman and Hutcherson v. Obstetric &

Gynecologic Assocs. of Columbus, a plaintiff-patient failed to timely bring a

medical malpractice claim against a defendant-doctor due to a doctor’s good-faith

mistake, the error of which was not apparent at the time of treatment. See Osburn,

603 S.E.2d at 697-98 (doctor’s use of ultimately harmful silicone injections was

not declared unsafe by FDA at time of treatment); Hutcherson, 543 S.E.2d at 806

(doctor’s heart-murmur diagnosis only later refuted by subsequent third-party

autopsy’s finding of “a very rare disorder that affects pregnant wom[e]n”). 4 The

Osburn court did cite the “other conduct” language of Esener in describing the

doctrine of equitable estoppel, but it did not analyze the defendant’s conduct under

this prong because the defendant-doctor’s alleged fraudulent medical concealment

was the sole factual issue before the court. Osburn, 603 S.E.2d at 304.

       In this case, the defendants acted with an express intent to toll “any

limitations period” notwithstanding Georgia’s well-settled law that the medical

malpractice statute of repose “may not be ‘tolled’ for any reason.” See Simmons,

614 S.E.2d at 30. Thus here, and unlike in Osburn and Hutcherson, it was apparent

at the time of the defendants’ conduct that, but for the defendants’ promise,

       4
         The defendants also cite Canas v. Al-Jabi, 639 S.E.2d 494, 508 (Ga. Ct. App. 2006) for
the principle that equitable estoppel requires intentional wrongful conduct on the part of the
defendant. However, the Canas decision was later reversed and vacated by the Georgia Supreme
Court. See Kaminer v. Canas, 653 S.E.2d 691 (Ga. 2007).
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Bullington’s claims relating to the August 11, 2010 tooth extraction would be

otherwise barred by the statute of repose.

      Nevertheless, the defendants made an agreement with Bullington promising

not to raise this statute-of-repose defense in exchange for Bullington’s agreement

to postpone filing suit. It was clear, as the district court determined, that the

defendants “intended to enter in [the tolling agreement] and did not somehow

negligently enter” it. It was also clear that the agreement required Bullington “to

forego [sic] the filing of any lawsuit against [defendants] . . . prior to the

termination date [of the agreement].” Given the parties’ conduct and agreed-to

language, we cannot say that the district court clearly erred in determining that the

defendants “lull[ed Bullington] into a false security” by agreeing to enter into this

tolling arrangement.

      The defendants argue that they did not draft the additional language tolling

the statute of repose and made no representations as to the parties’ ability to do so

under Georgia law. But the district court considered this argument and noted that

“[i]t makes no difference” because “both parties purport[ed] to toll the repose

period.” The doctrine of equitable estoppel follows from “the maxim that no man

may take advantage of his own wrong.” Glus v. Brooklyn E. Dist. Terminal, 359

U.S. 231, 232, 79 S. Ct. 760, 762 (1959). Here, even if Bullington’s counsel

drafted the relevant language, Bullington relied on the defendants’ express promise


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to suspend the assertion of any statute-of-repose defense until after September 23,

2015. Bullington in fact delayed the bringing of his lawsuit until September 23,

2015, after the five-year statute of repose otherwise expired on August 11, 2015. In

spite of this, the defendants now seek to gain the benefit of a repose rule that they

promised not to assert against Bullington. Under these facts, we cannot say that the

district court erred in applying the doctrine of equitable estoppel.

                                III. CONCLUSION

   For all of these reasons, we affirm the district court’s denial of the defendants’

motion to dismiss the complaint.

   AFFIRMED.




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