McGowan v. University of Scranton

Decision Date15 May 1985
Docket NumberNo. 84-5091,84-5091
Citation759 F.2d 287
PartiesGaylon H. McGOWAN, Administrator ad Prosequendum of the Estate of McGowan, Valerie Joyce, Deceased, General Administrator of the Estate of McGowan, Valerie Joyce, Deceased, and Gaylon H. McGowan and Gloria McGowan, Individually, Appellants, v. UNIVERSITY OF SCRANTON, a corporation of the Commonwealth of Pennsylvania; and Gloria Gavin, R.N., and Tampax, Inc., a corporation of the State of Delaware, Appellees.
CourtU.S. Court of Appeals — Third Circuit

Benjamin N. Cittadino (argued), Pellettieri, Rabstein & Altman, Trenton, N.J., Isabelle Frank, Betsy Sweetser, Trenton, N.J., on the Brief, for appellants.

Gordon B. Simmons (argued), Cody H. Brooks, Henkelman, Kreder, O'Connell & Brooks, Scranton, Pa., for appellee University of Scranton.

Richard G. Fine, Bialkowski, Fine & Bialkowski, Scranton, Pa., for appellee Gavin.

Roger E. Podesta, Kenneth E. Wile (argued), Marc M. Arkin, Debevoise & Plimpton, New York City, Jeffrey B. Rettig, Thomas & Thomas, Harrisburg, Pa., for appellee Tampax, Inc.

Before SEITZ and BECKER, Circuit Judges, and TEITELBAUM, District judge. *

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal in a diversity case, 28 U.S.C. Sec. 1332, presents the question whether the running of the statute of limitations applicable to actions brought under the Pennsylvania wrongful death and survival statutes enacted in 1978 1 may be tolled when a plaintiff is unable, despite the exercise of due diligence, to determine the cause of the decedent's death. The Pennsylvania Supreme Court has not yet addressed the applicability of this principle, the so-called "discovery rule," in such circumstances. We must therefore predict how that court would resolve the question. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661-62 (3d Cir.1980).

The pertinent statute, 42 Pa.Cons.Stat.Ann. Sec. 5524(2) (Purdon 1981), provides that wrongful death and survival actions must be commenced within two years following the accrual of the cause of action. See also 42 Pa.Cons.Stat.Ann. Sec. 5502(a) (Purdon 1981) (periods of limitations for civil actions generally are measured from time of accrual of cause of action). 2 In this case, the plaintiffs, Gaylon and Gloria McGowan, filed an amended complaint, naming Tampax, Inc. ("Tampax"), as a defendant, more than two years after the death of the plaintiffs' daughter, the event that led to the suit. Notwithstanding this fact, plaintiffs contend that the amended complaint is timely. They assert that the periods of limitations in wrongful death and survival actions are subject to the discovery rule, which in Pennsylvania suspends the running of a statute of limitations until the plaintiff knows, or in the exercise of reasonable diligence, should know: (1) that he or she has been injured; and (2) that the injury has been caused by another party's conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493, 500 (1984); see also Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Plaintiffs argue that they did not know and reasonably could not have known of the possible connection between Tampax's conduct and their daughter's death until less than two years before they named Tampax in the suit.

The district court granted summary judgment in favor of Tampax, relying on Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981) (plurality of three Justices, with two Justices concurring in the result), rev'g 284 Pa.Super. 81, 425 A.2d 428 (1980). In Anthony, the Supreme Court of Pennsylvania held that the discovery rule does not apply to wrongful death and survival actions governed by the predecessor provisions of the current statute of limitations, Pa.Stat.Ann. tit. 12, Secs. 34 and 1603 (repealed 1978). The district court extended the holding in Anthony to encompass actions brought under Sec. 5524(2), having concluded that nothing in the language or legislative history of Sec. 5524(2) would suggest a different result.

We disagree. As will appear more fully from the discussion infra, this case largely turns on the differences between Sec. 5524(2) and the provisions at issue in Anthony. See infra, at 293-294. (quoting texts of statutory provisions). The critical difference is that the current formulation measures the limitation period from the "accrual" of the "cause of action," whereas the prior provisions used the dates of "death" and "injury." As we read the Anthony opinion, it applies only to the statutes relevant in that case. Accordingly, Anthony does not represent binding precedent in this case. Our examination of the differences in language between the current and repealed statutes of limitations, the legislative history of the current statute, relevant Pennsylvania decisional law, including a recent Superior Court case not available to the district court, and policy considerations persuade us that the Pennsylvania Supreme Court, if faced with this issue, would not extend Anthony to controversies governed by Sec. 5524(2), but rather would apply the discovery rule. Accordingly, we will vacate the grant of summary judgment and remand for further proceedings.

I.

When Valerie Joyce McGowan, a first year student at the University of Scranton, died suddenly and mysteriously on October 13, 1978, the cause of her death was unknown and, in a sense, unknowable, for the disease that was later identified as having caused her death--toxic shock syndrome ("TSS")--had not yet been identified in the medical literature. 3 On July 31, 1979, nine months after Ms. McGowan's death, her parents, Gaylon H. McGowan and Gloria McGowan, filed suit in the district court for the District of New Jersey against the University of Scranton and its infirmary nurse, alleging negligence in the medical care and treatment rendered to Ms. McGowan prior to her death. 4 At that time, the cause of Ms. McGowan's death was still unknown. However, on June 2, 1980, the chief pathologist of the hospital at which Ms. McGowan died wrote to the plaintiffs, telling them that TSS might have been responsible for Ms. McGowan's death. TSS had been identified in 1980 by the Center for Disease Control as possibly being associated with the use of tampons by young women. 5

Pursuant to a consent order entered on July 13, 1981, thirty-three months after the tragedy, plaintiffs filed an amended complaint to state a claim for relief against appellee Tampax, a manufacturer of tampons, in which plaintiffs alleged that Tampax tampons caused Ms. McGowan to contract TSS and die. At the same time, the case was transferred pursuant to 28 U.S.C. Sec. 1404(a) to the district court for the Middle District of Pennsylvania. On December 14, 1983, the district court granted Tampax's motion for summary judgment, holding that the plaintiffs' claim against Tampax was barred under the pertinent statute of limitations, 42 Pa.Cons.Stat.Ann. Sec. 5524(2) (Purdon 1981). Plaintiffs appealed. 6

II.

A federal court exercising diversity jurisdiction is obliged to apply the substantive law of the state in which it sits, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and substantive law includes statutes of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 552 (3d Cir.1985). State law includes authoritative pronouncements of the highest court of the state. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). See Erie, 304 U.S. at 78, 58 S.Ct. at 822; Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685, 687 (3d Cir.1980). Accordingly, in this case we would be bound by an authoritative interpretations of Sec. 5524 by the Pennsylvania Supreme court.

Our task becomes more complicated in the absence of a Pennsylvania Supreme Court decision directly on point. In these circumstances, we must predict how that court would decide the issue. Estate Of Bosch, 387 U.S. at 465, 87 S.Ct. at 1782; McKenna, 622 F.2d at 661-62. In attempting to forecast state law, we "must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand." McKenna, 622 F.2d at 663. See also Safeco, 622 F.2d at 688; Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir.1977). We bear in mind, too, that we should not accord to any particular "datum" more significance than would the Pennsylvania Supreme Court under similar circumstances. McKenna, 622 F.2d at 662. Decisions of intermediate appellate courts of the state, while not conclusive, are "indicia of how the state's highest court might decide" the issue. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981). In appropriate circumstances, such decisions may constitute "presumptive evidence" of state law. See, e.g., National Surety Corp. v. Midland Bank, 551 F.2d 21, 30 (3d Cir.1977).

There is scant state decisional authority relevant to this case. The district court placed controlling weight on the decision of the Pennsylvania Supreme Court in Anthony, 7 in which the court construed different provisions from the one at issue here. At the time it rendered its judgment, however, the district court did not have the benefit of the recent opinion in Pastierik v. Duquesne Light Co., --- Pa.Super. ---, 491 A.2d 841 (1985) (per curiam), in which a panel of the Pennsylvania Superior Court applied the discovery rule to Sec. 5524 in the context of a "creeping disease" 8 case. We consider the impact of Pastierik first, because it is the most recent authority and the only Pennsylvania appellate case directly on point.

Pastierik involved wrongful death and survival...

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