                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       February 15, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    VA LERIE AN N G RIFFITHS-RA ST,

                Plaintiff-Appellant,

    v.                                                     No. 05-4279
                                                  (D.C. No. 2:02-CV-1267-DAK)
    SULZER SPINE TECH, a M innesota                          (D. Utah)
    corporation also known as Zimmer
    Spine; PR AV EEN G . PR ASA D ,
    an individual,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.




         Plaintiff-appellant Valerie Ann Griffiths-Rast appeals the district court’s

grant of summary judgment to defendants-appellees Sulzer Spine Tech (Sulzer)

and Praveen G. Prasad, M .D. M s. Griffiths-Rast underwent a back surgery on




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
August 3, 1998, during which Dr. Prasad implanted a “BAK Cage” manufactured

by Sulzer into M s. Griffiths-Rast’s spine. M s. Griffiths-Rast subsequently served

Dr, Prasad with a notice of intent to commence action on November 26, 2001, and

filed her complaint on November 26, 2002, alleging a violation by Dr. Prasad, of

the Utah Health Care M alpractice Act, Utah Code Ann. §§ 78-14-1 through

78-14-16 (1998), and a violation by Sulzer of the Utah Product Liability Act,

Utah Code Ann. §§ 78-15-1 through 78-15-6 (1998). The district court granted

summary judgment to Dr. Prasad on the ground that the claim against him was

barred by the two-year statute of limitation found in § 78-14-4(1) and that the

limitation period in that statute was not tolled by application of § 78-12-35. The

district court granted summary judgment to Sulzer on the ground that the claim

against it w as barred by the two-year statute of limitation found in § 78-15-3.

M s. Griffiths-Rast appealed, and we exercise our jurisdiction under

28 U.S.C. § 1291 and affirm.

                               A. Standard of Review

      “W e review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

                                          -2-
that the moving party is entitled to a summary judgment as a matter of law.”

Fed. R. Civ. P. 56(c). A statute of limitation defense is an affirmative defense.

See Fed. R. Civ. P. 8(c). W here a defendant seeks summary judgment on the

basis of an affirmative defense,

      [t]he defendant . . . must demonstrate that no disputed material fact
      exists regarding the affirmative defense asserted. If the defendant
      meets this initial burden, the plaintiff must then demonstrate w ith
      specificity the existence of a disputed material fact. If the plaintiff
      fails to make such a showing, the affirmative defense bars his claim,
      and the defendant is then entitled to summary judgment as a matter
      of law .

Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (citations omitted).

                           B. Claim Against Dr. Prasad

      Under § 78-14-8:

      No malpractice action against a health care provider may be initiated
      unless and until the plaintiff gives the prospective defendant or his
      executor or successor, at least ninety days’ prior notice of intent to
      commence an action.

M s. Griffiths-Rast served Dr. Prasad a notice of intent to commence action on

November 26, 2001. The district court granted Dr. Prasad summary judgment on

the ground that the two-year malpractice statute of limitation barred

M s. Griffiths-Rast’s claim because she should have discovered her legal injury

prior to November 26, 1999. It further held that the limitation period was not

tolled by any periods of time during which Dr. Prasad was absent from the state

of Utah. M s. Griffiths-Rast argues that the grant of summary judgment was



                                         -3-
improper because a reasonable jury could have found (1) that the two-year statute

of limitation should not have begun to run until July 2, 2001, the date she claims

she discovered her legal injury, and (2) that the limitation period was tolled by

§ 78-12-35.

                             1. Discovery of Legal Injury

      Under § 78-14-4(1):

      No malpractice action against a health care provider may be brought
      unless it is commenced within two years after the plaintiff or patient
      discovers, or through the use 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.

The two-year statute of limitation in this section begins to run when “the injured

person knew or should have known that [she] had sustained an injury and that the

injury was caused by negligent action.” Foil v. Ballinger, 601 P.2d 144, 148

(Utah 1979). “[D ]iscovery of legal injury, therefore, encompasses both awareness

of physical injury and know ledge that the injury is or m ay be attributable to

negligence.” Collins v. Wilson, 984 P.2d 960, 966 (Utah 1999) (quotation

omitted). “[A]ll that is required to trigger the statute of limitations is sufficient

information to put plaintiff[] on notice to make further inquiry if [she] harbors

doubts or questions.” M acris v. Sculptured Software, Inc., 24 P.3d 984, 990

(U tah 2001).




                                           -4-
      M s. Griffiths-Rast testified in her deposition that “immediately after the

[August 3, 1998, surgical] procedure,” while she was still in the hospital

recovering, she felt that there was a problem with the cage implantation, and there

was a problem w ith what Dr. Prasad did, and that “[e]verything went wrong.”

Aplt. App., Vol. 1 at 77-78, 80. M s. Griffiths-Rast also testified that she

contacted a lawyer about the problems with her back surgery “a couple of weeks

after [her] surgery” when she “wasn’t getting any better,” and that she signed an

agreement retaining the attorney’s services at that time. Id. at 104. Further, on

November 10, 1998, another doctor informed M s. Griffiths-Rast that there was a

defect w ith the cage implantation. Id., Vol. 2 at 204-05, 210. M s. Griffiths-Rast

produced no evidence in response to Dr. Prasad’s summary judgment motion to

refute these facts, admitting that she had discovered the malpractice in November

1998. See Aplt. App., Vol. 2 at 210. 1

      Nevertheless, M s. Griffiths-Rast argues that she did not discover her legal

injury until July 2, 2001, when she received a report from a Dr. Stephen Wood

stating that he had been told by the Utah M alpractice Insurance association that

“there have been numerous malpractice suits filed due to complications resulting

from ‘The Cage’ . . . [and that he] ha[d] been told that the procedure is no longer

recommended.” Aplt. App. at 200. M s. Griffiths-Rast argues that the



1
      The argument presented in her response was that she discovered the
malpractice in November 1998. See Aplt. App. at 210.

                                          -5-
determination of when she discovered her legal injury is a factual question not

suitable for summary judgment.

      M s. Griffiths-Rast misinterprets the summary judgment standard.

The question is whether there is a “genuine issue as to any material fact,”

Fed. R. Civ. P. 56(c) (emphasis added), and “an issue of material fact is genuine

only if the nonmovant presents facts such that a reasonable jury could find in

favor of the nonmovant,” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.

2005). Here, no reasonable jury could find that M s. Griffiths-Rast did not have

sufficient information to put her on notice to conduct a further inquiry into

whether there was malpractice until after November 26, 1999. In fact, she

admitted that she believed that there was something wrong with Dr. Smith’s

performance immediately after the August 1998 surgery and that she hired an

attorney a couple of weeks later to conduct an inquiry into possible malpractice.

                         2. Tolling of Statute of Limitation

      M s. Griffiths-Rast argues in the alternative that even if she was aware of

her legal injury prior to November 26, 1999, the limitation period should have

been tolled for some of that time because (1) Dr. Prasad conducted business

outside of Utah for periods of time between her surgery and September 2000,

and (2) Dr. Prasad moved from Utah to California in September 2000. Under

§ 78-12-35:




                                         -6-
      W here a cause of action accrues against a person when he is out of
      the state, the action may be commenced within the term as limited by
      this chapter after his return to the state. If after a cause of action
      accrues he departs from the state, the time of his absence is not part
      of the time limited for the commencement of the action.

M s. Griffiths-Rast argues that it is a disputed genuine issue of fact whether

Dr. Prasad was absent for enough time so that tolling the statute of limitation for

that period of time would result in the statue not being violated. She argues that

the district court should have conducted a separate trial to decide this issue.

      The district court held that medical malpractice actions were excepted from

the tolling provision of § 78-12-35 because under § 78-14-4(2) the two-year

limitation period “shall apply to all persons, regardless of minority or other legal

disability under Section 78-12-36 or any other provision of the law.” (emphasis

added). The court held that this provision was an “explicit exception to section

78-12-35” and that the limitation period was not tolled during Dr. Prasad’s

absences. W e agree.

      M s. Griffiths-Rast argues on appeal that the tolling provision in § 78-12-35

is applicable despite the language in § 78-14-4(2). She first directs us to Jensen

v. IHC Hospitals, Inc., 944 P.2d 327, 333 n.3 (Utah 1997). In that footnote, the

Utah Supreme Court noted that the family of a woman who allegedly died of

malpractice argued that they should be able to file her suit outside the two-year

statute of limitation because under § 78-12-37:




                                          -7-
      [I]f a person entitled to bring an action dies before the expiration of
      the time limited for the commencement thereof, and the cause of
      action survives, an action may be commenced by [her]
      representatives after the expiration of that time and within one year
      from [her] death.

The Utah Supreme Court ruled against the family on the ground that the statute of

limitation had run prior to the woman’s death. Jensen therefore does not support

M s. Griffiths-Rast’s argument. A ruling that § 78-12-37 did not apply because

the limitation period expired prior to the decedent’s death, is not the same as

ruling that § 78-12-37 would have applied if the limitation period had not expired.

There is no indication that the court even considered the effect of § 78-14-4(2) on

§ 78-12-37.

      M s. Griffiths-Rast also argues that the Utah Supreme Court found that

§ 78-14-4(2) was unconstitutional as applied to minors. In Lee v. Gaufin,

867 P.2d 572, 580-81 (Utah 1993), the court found that § 78-14-4(2) created an

exception to § 78-12-36, which generally tolls limitation periods as to claims of

minors until the minor reaches the age of majority. Since M s. Griffiths-Rast’s

brief does no more than note that Lee found § 78-14-4(2) unconstitutional in that

it nullified § 78-12-36, we can only assume that she is asserting, without

argument, that it is also unconstitutional when applied to nullify to § 78-12-35.

W e disagree.

      The Utah Supreme Court’s holding in Lee was premised on the fact that,

since minors had no legal capacity to sue in Utah, application of § 78-14-4(2) in

                                         -8-
some cases would result in the statute of limitation running prior to the minor

coming of age and being legally able to bring his or her action. Lee, 867 P.2d at

580. Consequently, application of § 78-14-4(2) would deprive some minors of

access to the court system. Id. Here, there is no such problem. Considering the

provisions of Fed. R. Civ. P. 4(e), Utah R. Civ. P. 4, and Utah’s long-arm statute,

§ 78-27-24, 2 it is clear that a potential defendant’s flight to another state will not

2
      Under Fed. R. Civ. P. 4(e):

      Unless otherwise provided by federal law, service upon an individual
      from whom a waiver has not been obtained and filed . . . may be
      effected in any judicial district of the United States:

      (1) pursuant to the law of the state in which the district court is
      located, or in which service is effected, for the service of a summons
      upon the defendant in an action brought in the courts of general
      jurisdiction of the State; or

      (2) by delivering a copy of the summons and of the complaint to the
      individual personally or by leaving copies thereof at the individual’s
      dwelling house or usual place of abode with some person of suitable
      age and discretion then residing therein or by delivering a copy of
      the summons and of the complaint to an agent authorized by
      appointment or by law to receive service of process.

Under the pertinent parts of Utah R . Civ. P. 4(d)(1):

      (d)(1) Personal service. The summons and complaint may be served
      in any state or judicial district of the United States . . . . If the
      person to be served refuses to accept a copy of the process, service
      shall be sufficient if the person serving the same shall state the name
      of the process and offer to deliver a copy thereof. Personal service
      shall be made as follow s:

      (d)(1)(A) Upon any individual . . . by delivering a copy of the
                                                                          (continued...)

                                          -9-
immunize him from suit. Dr. Prasad was himself served with process after he

moved to California. 3


2
    (...continued)
          summons and the complaint to the individual personally, or by
          leaving a copy at the individual’s dwelling house or usual place of
          abode with some person of suitable age and discretion there residing,
          or by delivering a copy of the summons and the complaint to an
          agent authorized by appointment or by law to receive service of
          process[.]

Under the pertinent parts of § 78-27-24:

         Any person . . . whether or not a citizen or resident of [Utah], who in
         person or through an agent does any of the following enumerated
         acts, submits himself, and if an individual, his personal
         representative, to the jurisdiction of the courts of [Utah] as to any
         claim arising out of or related to:

         (1) the transaction of any business within this state;

         (2) contracting to supply services or goods in this state;

         (3) the causing of any injury within this state whether tortious or by
         breach of warranty;


3
       M s. Griffiths-Rast also raises a brief argument that under § 78-14-8 she
was entitled to a 120-day enlargement of the four-year limitation period imposed
by the statute of repose found in § 78-14-4(1). This argument is meritless. First,
the district court held that M s. Griffiths-Rast’s action was barred under the
malpractice act’s two-year statute of limitation, not the four-year statute of
repose. Second, under § 78-14-8, a malpractice action may not be commenced
unless the prospective defendant is given notice of the plaintiff’s intent to
comm ence an action at least ninety days prior to the filing of the suit. If the
notice is served “less than ninety days prior to the expiration of the applicable
time period, the time for commencing the malpractice action against the health
care provider shall be extended to 120 days from the date of service of the
notice.” Id. M s. Griffiths-Rast served her notice of intent in November of 2001.
                                                                        (continued...)

                                           -10-
                              C. Claim Against Sulzer

      Under § 78-15-3, a legal action under the Utah Product Liability Act:

“shall be brought within two years from the time the individual who would be the

claimant in such action discovered, or in the exercise of due diligence should

have discovered, both the harm and its cause.” The Utah Court of Appeals has

held that because the statute of limitation in § 78-15-3 runs from the time the

plaintiff discovered or should have discovered both the harm and its “cause,” the

reference to “cause” in that section “tolls the running of the statute of limitation

until the plaintiff discovers, or in the exercise of due diligence should have

discovered, the identity of the manufacturer.” Aragon v. Clover Club Foods Co.,

857 P.2d 250, 253 (Utah Ct. App. 1993). Because M s. Griffiths-R ast did not file

her complaint until November 26, 2002, her claim is barred unless she did not

discover, or in the exercise of due diligence should not have discovered, that the

BAK Cage had injured her and that Sulzer manufactured the BAK Cage until after

November 26, 2000.

      M s. Griffiths-Rast testified that she felt as if there was a problem w ith the

cage implantation while she was in the hospital immediately after her surgery on

August 3, 1998; that the BAK Cage hurt and “felt” like it was “defective”; and

3
 (...continued)
M s. Griffiths-R ast admitted that she discovered her legal injury in November of
1998. Therefore, even if the date that she admitted discovery is used, the two-
year statute of limitation period ran in November 2000, a year prior to the filing
of her notice.

                                         -11-
that she had been able to feel that the BAK Cage was defective since its

implantation. Aplt. App., Vol. 1 at 80-81, 101-02. Because all that is required to

start the running of the limitation period is information sufficient to put the

plaintiff on notice to make further inquiry,” M acris, 24 P.3d at 990, we don’t

believe a reasonable jury could find that M s. Griffiths-Rast should not have

discovered with the exercise of due diligence that the BAK Cage had injured her

until after November 26, 2000.

      The more difficult question is whether, as a matter of law, through the

exercise of due diligence, she should have discovered that Sulzer was the

manufacturer of the B AK Cage prior to November 26, 2000. The district court

correctly noted in another case that “[g]enerally, the question of when a plaintiff

knew, or with reasonable diligence should have known, of a cause of action is a

question of fact for the jury.” M cCollin v. Synthes Inc., 50 F. Supp. 2d 1119,

1123 (D. Utah 1999). As noted above, however, the relevant question is whether

there is a “genuine issue as to any material fact,” Fed. R. Civ. P. 56(c) (emphasis

added), and “an issue of material fact is genuine only if the nonmovant presents

facts such that a reasonable jury could find in favor of the nonmovant,”

Garrison, 428 F.3d at 935. The district court held that no reasonable jury could

find that M s. Griffiths-Rast had exercised due diligence in discovering that Sulzer

was the manufacturer of the BAK Cage, and that “her claim against Sulzer-Spine

was not tolled by her failure to discover its identity.” Aplt. App., Vol. 2 at 361.

                                         -12-
      On appeal, M s. Griffiths-Rast argues again that she did not discover that

she had a legal injury until July 2, 2001, when Dr. W ood’s letter told her about

other malpractice claims that had been raised. Once she discovered that she had a

legal injury, she “first commenced the medical malpractice portion of her suit

before proceeding with the products liability aspect” of her suit. Br. of Aplt. at

35. She alleges that she did not begin her product liability case at the same time

as her medical malpractice case because “she needed confirmation from

Dr. Prasad [regarding] who the manufacturer was.” Id. She argues that given the

“fact” that she did not discover her legal injury until July 2, 2001, and that she

did not discover that Sulzer manufactured the BAK Cage until October 4, 2002,

“[a] reasonable jury [could] find . . . that she did not reasonably discovery [sic]

the name of the manufacturer of the BAK T M Cage until October 2002.” Br. of

Aplt. at 39-40.

      W e disagree. As properly noted by the district court, “[w]hat constitutes

due diligence must be tailored to fit the circumstances of each case. It is that

diligence which is appropriate to accomplish the end sought and which is

reasonably calculated to do so.” Aragon, 857 P.2d at 253 (quotation omitted).

It seems clear that in a normal case a reasonable jury could not find that it would

take over two years to determine the manufacturer of a trademarked medical




                                         -13-
device when the party knows the correct name of that device. 4 The question then

becom es whether M s. G riffiths-Rast presented evidence that would allow a

reasonable jury to find that even if she had used “diligence which is appropriate

to accomplish the end sought and which is reasonably calculated to do so,”

Aragon, 857 P.2d at 253, she should not have ascertained the identity of the

manufacturer prior to November 26, 2000. She presented no such evidence.

      In fact, M s. Griffiths-Rast presented the district court with the affidavit of a

paralegal that worked for her attorney to help explain why it had taken four years

to determine the manufacturer of the BAK Cage. The paralegal averred that the

firm had contracted with an outside “nurse paralegal” w ho “was employed to

research the claims against the doctor.” Aplt. App. at 316. According to the

affiant, the nurse paralegal “provided some internet literature” for a “LT-Cage,”

and that M s. Griffiths-Rast’s attorney was “led to believe that the LT-Cage w as a

recently approved Cage from the same manufacturer of the BAK Cage.” Id.

According to M s. Griffiths-Rast, she and her attorney went to the October 2002

meeting with Dr. Prasad, “with literature concerning a the [sic] LT-Cage product

manufactured by different [sic] company believing that was the product implanted



4
       Sulzer presented the consent form signed by M r. Griffiths-Rast showing
that she was going to have spinal fusion surgery with “BAK cages.” Aplt. A pp.,
Vol. 2 at 332, 341. In M s. Griffiths-Rast’s appellate brief, she notes that one of
the “assumptions” that she had made, that Dr. Prasad eventually corrected, was
that the “BA K” in BAK Cage was a typographical error for the word “back.”
Br. of Aplt. at 35.

                                         -14-
into her,” and Dr. Prasad informed them that they had the wrong device.

      Consequently, the evidence presented to the district court did not show that

because of the circumstances of the case a reasonable jury could have found that

with the exercise of due diligence she should not have discovered that Sulzer

manufactured the BAK Cage until after November 26, 2000. It showed instead

that because the outside nurse paralegal led her attorney to the misunderstanding

that the “LT-Cage” and the BAK Cage were made by the same company, she

misidentified the manufacturer and proceeded under that misidentification until

the October 2002 meeting with Dr. Prasad.

      It is true that M s. Griffiths-Rast noted in the district court that Sulzer had

gone through a number of company name changes and was a foreign corporation

without a registered agent in U tah. She made no argum ent, however, that these

facts impeded her ability to identify Sulzer as the manufacturer of the BAK Cage.

Consequently, we see no error in the district court’s grant of summary judgment

on this issue.

                                    D. Conclusion

      For the reasons set forth above, the district court’s grant of summary

judgm ent to D r. Prasad and Sulzer is AFFIRMED.

                                                      Entered for the Court

                                                      Bobby R. Baldock
                                                      Circuit Judge



                                          -15-
