Cook v. G.D. Searle & Co., Inc., 82-2021

• Decision Date: 15 April 1985
• Docket Number: No. 82-2021,82-2021
• Citation: 759 F.2d 800
• Parties: Jane Heslinga COOK, Plaintiff-Appellant, v. G.D. SEARLE & CO., INC., Defendant; Dr. Brian Donaldson, Dr. David E. Bates, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 800

759 F.2d 800

Jane Heslinga COOK, Plaintiff-Appellant, v. G.D. SEARLE & CO., INC., Defendant Dr. Brian Donaldson, Dr. David E. Bates, Defendants-Appellees.

No. 82-2021.

United States Court of Appeals Tenth Circuit.

April 15, 1985.

Garold F. Heslinga and Charles Helsten, Oskaloosa, Iowa, and Scott R. Larson, Denver, Colo., for plaintiff-appellant.

Duncan W. Cameron of Hall & Evans, Denver, Colo., for defendants-appellees.

Before HOLLOWAY, Chief Judge, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Chief Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Plaintiff, a resident of Iowa, commenced a diversity action in the District of Colorado, suing in tort for injuries allegedly caused by an intra-uterine device (IUD) manufactured by defendant, G.D. Searle & Co., Inc. In this suit she asserted a malpractice claim against the defendants-appellees, Dr. Bates and Dr. Donaldson. The district court granted the defendant doctors' motion for summary judgment and dismissed the action as to them as time-barred. Plaintiff appeals. We affirm.

I

Plaintiff's complaint in the instant Colorado suit alleged that the IUD was prescribed for her by defendant doctors of a medical group at Greeley, Colorado, on November 4, 1974. Plaintiff's brief on appeal states that the device was inserted on November 4, 1974. Appellant's Brief and Argument 3. She averred that she became extremely ill on or about August 26, 1976, and that another physician diagnosed a massive infection of the uterus and performed a hysterectomy to save her life. I R. 1-3. In its order of April 13, 1982, granting summary judgment as to the doctors, the district court found that "[o]n August 23, 1976, [plaintiff's] physicians diagnosed an infection of the uterus and told her that they thought the infection was caused by the IUD. On August 26, 1976, her physicians performed a hysterectomy." I R. 79. In her deposition taken on March 11, 1982, plaintiff affirmed that prior to the August 26, 1976 hysterectomy, Dr. Lemon or Dr. Campbell had indicated to her that they thought the infection was caused by the IUD; that this statement was made by him to her on August 23, 1976; and that she knew he was referring to the Searle IUD inserted by Dr. Donaldson. I R. 98-99.

Plaintiff first brought suit on January 20, 1978 against the IUD manufacturer and the defendant doctors in the United States District Court for the Southern District of Iowa. I R. 63. The doctors filed motions to dismiss for lack of in personam jurisdiction in the Iowa forum. I R. 20. While these motions were pending, plaintiff filed on August 28, 1978 a second identical case in the District of Colorado against all defendants named in the Iowa suit. I R. 23, 60. On September 13, 1979, the doctors' motions to dismiss were granted in Iowa. 475 F.Supp. 1166 (S.D.Iowa). The case was transferred from Iowa to the Colorado federal court as to the remaining defendant on July 3, 1980.

On March 10, 1982, the defendant doctors filed a motion for summary judgment in Colorado, asserting the statute of limitations. The district court granted the motion, holding that the action was time-barred as to them under the Colorado statute of limitations in effect in August 1976. ¹ I R. 80. The court also concluded that Colorado's savings statute, ² Colo.Rev.Stat. Sec. 13-80-128 (1973), did not apply since the new action in Colorado was not brought within one year after the termination of the original Iowa suit as required by the savings statute. I R. 80-81. The court reasoned that since the plaintiff commenced her second action before the Iowa suit was dismissed as to defendant doctors, she could not utilize the extension in time offered by the statute. I R. 81. Thus the district court held that the action was time-barred as to the defendant doctors.

II

Plaintiff contends on appeal that the action commenced in the United States District Court for the Southern District of Iowa was filed within the allowable time under the statutes of limitations for both Colorado and Iowa. See Appellant's Brief and Argument 5. She argues, inter alia, ³ that this timely filing of the Iowa suit, later transferred to Colorado, tolled the running of Colorado's statute of limitations and that the action was thus not time-barred as to defendant doctors in the Colorado forum, relying on Atkins v. Schmutz Manufacturing Co., 435 F.2d 527 (4th Cir.1970) (en banc), cert. denied, 402 U.S. 932, 91 S.Ct. 1526, 28 L.Ed.2d 867 (1971), and similar cases. Id. at 15.

At the outset, we note that Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), requires us to apply Colorado's statute of limitations in this diversity case. Moreover, the state's tolling rules, as "an integral part of the several policies served by the statute of limitations," are generally to be applied as well. Walker v. Armco Steel Corp., 446 U.S. 740, 751, 100 S.Ct. 1978 1985, 64 L.Ed.2d 659 (1980). ⁴ The Supreme Court has explained that:

"[a]ny period of limitation ... is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action. Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones. In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival and questions of application."

Board of Regents of the University of New York v. Tomanio, 446 U.S. 478, 485-86, 100 S.Ct. 1790, 1795-96, 64 L.Ed.2d 440 (1980) (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975)). The state tolling rule therefore will generally govern in diversity actions absent a direct conflict between a state rule and an overriding federal rule ⁵ or affirmative countervailing federal considerations. ⁶

Plaintiff argues, however, that under Atkins v. Schmutz Manufacturing Co., 435 F.2d 527 (4th Cir.1970) (en banc), cert. denied, 402 U.S. 932, 91 S.Ct. 1526, 28 L.Ed.2d 867 (1971), countervailing federal considerations do exist requiring application of the federal tolling rule. ⁷ She points to the reasoning in Atkins that the federal court system is a unitary, cohesive system; that the federal interests in the effective functioning of the system call for choosing federal law over state law on the procedural problem involved here; that the bringing of a second suit achieved the same result as a transfer of the first suit; and that upon the filing of the first suit, which served the purposes of the statute of limitations, the Colorado limitation should be held tolled in this federal case. Appellant's Brief and Argument 11-14.

In Atkins, the plaintiff was injured in Virginia by a machine manufactured by defendant, a Kentucky corporation having its sole place of business in that state. At that time, Virginia did not have a long-arm statute under which personal jurisdiction over the defendant could be obtained. Consequently, plaintiff filed suit in federal court in Kentucky. Although the one-year Kentucky statute of limitations had expired, all parties in the case proceeded on the assumption that, because the cause of action arose in Virginia, its two-year limitation period applied. That assumption was upset, however, when the Kentucky Court of Appeals changed the law and held that Kentucky's shorter statute of limitations was controlling in such circumstances. Meanwhile, Virginia had enacted a long-arm statute under which personal jurisdiction could be obtained over the defendant. Therefore, before the case was dismissed as time-barred by the Kentucky court, plaintiff filed his action in the Western District of Virginia.

The federal district court in Virginia dismissed on the ground that Virginia's two-year limitation had run before the Virginia suit was filed and that the limitation period was untolled by the proceedings in the federal court in Kentucky. 435 F.2d at 528-29. The Fourth Circuit reversed, stating:

That there is a significant federal concern for the application of rules of litigation in federal courts which are consistent with the fundamental nature of that court system is well established. See, e.g., Byrd v. Blue Ridge Cooperative, supra; Herron v. Southern Pacific Co., 283 U.S. 91, 94, 51 S.Ct. 383, 75 L.Ed. 857 [1931].

Insofar as federal concerns are involved, this action is, in effect, merely a continuation of the proceedings commenced in the Western District of Kentucky. This is clear from the unitary nature of the federal court system and the procedures it embodies for the expeditious adjudication of cases on their merits.

....

Though here there was no transfer of the action in the Western District of Kentucky and the question of its transferability was not raised, the commencement of this action in the Western District of Virginia during the pendency of the Kentucky action has achieved the same practical result. A determination of the tolling effect of the commencement and prosecution of the federal action in the Western District of Kentucky ought to be had under the same body of law regardless of the procedural means by which prosecution of the substantive cause of action is discontinued in the district court sitting in Kentucky and continued in a district court sitting in Virginia. (Footnote omitted).

Id. at 537-38.

Appellees' answer brief does not address Atkins or its rationale. Defendants do argue that transfer...