Pino v. U.S.

• Decision Date: 29 October 2007
• Docket Number: No. 06-7108.,06-7108.
• Citation: 507 F.3d 1233
• Parties: Michael PINO and Amy Pino, as parents of deceased Nevin Michael PINO, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

507 F.3d 1233

Michael PINO and Amy Pino, as parents of deceased Nevin Michael PINO, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 06-7108.

United States Court of Appeals, Tenth Circuit.

October 29, 2007.

Steven T. Horton (Brent Neighbors with him on the brief) of Horton & Neighbors, P.C., Oklahoma City, OK, for Plaintiffs-Appellants.

Jeanette Windsor, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with her on the brief), Muskogee, OK, for Defendant-Appellee.

Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

CERTIFICATION OF QUESTION OF STATE LAW

NEIL M. GORSUCH, Circuit Judge.

Michael and Amy Pino ask this court to certify to the Oklahoma Supreme Court the question whether a cause of action existed for the wrongful death of a nonviable stillborn fetus as of September 1-2, 2003. We agree that the resolution of this question may well determine the outcome of the Pinos' suit, and that it is a novel and unsettled matter in Oklahoma law. Accordingly, and as specified below, we grant the motion to certify.

I. FACTUAL BACKGROUND

Some twenty weeks pregnant, Ms. Pino arrived at the Carl Albert Indian Health Care Facility in Ada, Oklahoma in the early morning of September 1, 2003, complaining of constant cramping and vaginal bleeding. After evaluation, she was diagnosed with a urinary tract infection and released. Approximately three hours after her discharge, the Pinos called for an ambulance to take Ms. Pino back to the hospital because of her increased bleeding and abdominal pain. Upon her admission to the hospital, Dr. John Harvey, an employee of the hospital, performed a vaginal examination and questioned Ms. Pino about her condition. Dr. Harvey diagnosed Ms. Pino with placental abruption, requested that the pediatrician stand by to attend vaginal delivery of the fetus, and ruptured the amniotic sac. At twenty weeks, the fetus was, the parties stipulate, nonviable given the state of available medical technology. The following day the fetus was delivered stillborn.

Mr. and Ms. Pino sought damages for the wrongful death of their fetus, alleging that Dr. Harvey and the hospital rendered negligent medical care and treatment. Given the federal status of the hospital and Dr. Harvey's employment by the U.S. government, the Pinos first proceeded by filing an administrative claim pursuant to 28 U.S.C. § 2401(b), which the government denied. The Pinos thereafter brought this wrongful death action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and 2671, et seq., in the district court for the Eastern District of Oklahoma. The FTCA provides that the United States shall be liable for "personal injury or death . . . under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

With the government's potential liability dependent on state law, the Pinos conceded that it was not clear whether a wrongful death action existed under Oklahoma law for a stillborn and admittedly nonviable fetus as of September 1-2, 2003. Accordingly, they asked the district court to certify the question to the Oklahoma Supreme Court. The district court declined this invitation and instead proceeded to grant summary judgment for the government, concluding Oklahoma would not have allowed such a claim at that time.

Mr. and Ms. Pino now move this court to exercise its independent authority to certify their question to the Oklahoma Supreme Court. Alternatively, they appeal, asking us to reverse the district court's denial of their motion to certify and to reverse its entry of summary judgment.

II. STANDARDS FOR CERTIFICATION

A motion for certification may be brought independently and anew to the court of appeals. See 10th Cir. R. 27.1. Such a motion requires us to determine whether certification is appropriate as a de novo matter without regard to the district court's assessment. See Soc'y of Lloyd's v. Reinhart, 402 F.3d 982, 1001-02 (10th Cir. 2005); Copier v. Smith & Wesson Corp., 138 F.3d 833, 838-40 (10th Cir.1998). Certification by this court in no way implies an abuse of discretion by the district court in failing to certify, but only indicates our independent judgment on the question. See Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 100 n. 11 (1st Cir.1999) ("Our consideration of the renewed request [to certify] makes it unnecessary to determine whether the district court abused its discretion in refusing the earlier one. . . . [T]he fact that the district court, in the exercise of its discretion, reached a different conclusion from ours does not, on this record, indicate any abuse of discretion.").

The standards governing our independent analysis stem from both state and federal law. Under Oklahoma law, the Oklahoma Supreme Court has the power to answer a question certified to it by any federal court "if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state." Okla. Stat. tit. 20, § 1602.

Under our own federal jurisprudence, we will not trouble our sister state courts every time an arguably unsettled question of state law comes across our desks. When we see a reasonably clear and principled course, we will seek to follow it ourselves. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988); see also 17A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Vikram David Amar, Federal Practice and Procedure § 4248 (3d ed.1998). While we apply judgment and restraint before certifying, however, we will nonetheless employ the device in circumstances where the question before us (1) may be determinative of the case at hand and (2) is sufficiently novel that we feel uncomfortable attempting to decide it without further guidance. Delaney v. Cade, 986 F.2d 387, 391 (10th Cir. 1993); see Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) (finding certification particularly appropriate where the legal question is novel and the applicable state law is unsettled); 17A Wright & Miller et al., supra, § 4248.¹ In making the assessment whether to certify, we also seek to give meaning and respect to the federal character of our judicial system, recognizing that the judicial policy of a state should be decided when possible by state, not federal, courts. See Lehman Bros., 416 U.S. at 391, 94 S.Ct. 1741 (noting federal certification of state law questions "helps build a cooperative judicial federalism"); Delaney, 986 F.2d at 391 (certifying because of "our judicial policy that matters of state law should first be decided by state courts").

III. REASONS FOR CERTIFICATION

The Pinos' request for certification meets these criteria. The parties before us are in full agreement that answering the question whether a wrongful death cause of action for a nonviable stillborn fetus existed as of September 1-2, 2003 may well determine the outcome of this litigation. We cannot disagree with their assessment. After all, should no cause of action exist, the government will be entitled to judgment as a matter of law. If a cause of action does exist, the government's primary defense asserted so far in this litigation will fall.

The novelty of the question is likewise apparent for several reasons. First, Oklahoma's legislature in 2005 amended the wrongful death statute expressly to allow claims like the Pinos'. See 2005 Okla. Sess. Law Serv. 200, Section 1 (West) (codified as amended at Okla. Stat. tit. 12, § 1053(F)). Oklahoma, thus, seems to have a strong public policy preference for claims of this nature. At the same time, though, the 2005 amendment does not have retroactive effect. See 2005 Okla. Sess. Law Serv. 200, Section 16 (West); Walls v. Am. Tobacco Co., 11 P.3d 626, 631 (Okla.2000). Thus, one might reasonably question whether the amendment was designed to change preexisting law, and at least tacitly suggests that a cause of action for a nonviable stillborn fetus did not exist prior to its enactment. As it happens, however, such is not necessarily the case in Oklahoma. Under Oklahoma law, it is only "[i]f the earlier version of a statute definitely expresses a clear and unambiguous intent or has been judicially interpreted [that] a legislative amendment is presumed to change the existing law." Samman v. Multiple Injury Trust Fund, 33 P.3d 302, 307 (Okla.2001). Meanwhile, "if the earlier statute's meaning is in doubt or uncertain, a presumption arises that the amendment is designed to clarify," rather than change, existing law. Id. In this case, prior to the 2005 amendment, Oklahoma's wrongful death statute did not express a clear and unambiguous intent to exclude nonviable stillborn fetuses, and neither had the Oklahoma Supreme Court interpreted it to do so. Accordingly, the statutory history, suggestive though it may be, affords us no definitive guidance.

Second, there is no authoritative decision of the Oklahoma Supreme Court on the existence or nonexistence of a cause of action under the state's wrongful death statute as of 2003. What law does exist, moreover, underscores that the question is an open one. The Oklahoma Supreme Court long ago held that the pre-2005 wrongful death statute affords a cause of action for negligent prenatal care if a viable fetus is stillborn. See Evans v. Olson, 550 P.2d 924, 928 (Okla.1976). The court also definitively held as early as 1993 that a wrongful death action can be predicated on a prenatal injury occurring before viability, at least when a viable fetus is subsequently born alive. Graham v. Keuchel, 847 P.2d 342, 364 (Okla.1993). And, finally, the Oklahoma Supreme Court held that the pre-2005 wrongful death statute affords a cause of action in cases of nonviable fetuses born alive who...