Vaccariello v. Smith & Nephew Richards, Inc.

Cook, J.,

concurring in judgment only. I agree that appellee Smith & Nephew Richards, Inc. was entitled to judgment in its favor. But my reasoning differs from the lead opinion’s reasoning: Vaccariello’s Ohio action was time-barred based on our precedent set forth in Howard v. Allen (1972), 30 Ohio St.2d 130, 59 O.O.2d 148, 283 N.E.2d 167. And deciding that the action was time-barred removes other substantive issues from the case. I would therefore reserve the question whether the learned intermediary doctrine should apply to prescribed medical devices.

I

As a preliminary matter, the unusual wording of today’s judgment — “Judgment affirmed as modified” — warrants comment. The lead opinion notes that the trial court denied appellee’s first motion for summary judgment (based on statute-of-*386limitations grounds), but granted appellee’s second motion for summary judgment (after granting the motions in limine related to the learned intermediary doctrine). The court of appeals, in turn, phrased its judgment as follows: “This cause is affirmed in part and reversed in part for further proceedings consistent with the opinion herein.” The wording of this latter judgment, however, incorrectly characterized the court of appeals’ disposition of this case.

Civ.R. 58(A) provides: “Subject to the provisions of Rule 54(B), * * * upon a decision announced, * * * the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal.” This rule contemplates a difference between a decision and a judgment. Civ.R. 54(A) underscores this distinction, providing that a judgment “includes a decree and any order from which an appeal lies as provided in section 2505.02 of the Revised Code.” This court has long recognized that “[t]he denial of a motion for summary judgment * * * generally does not constitute a final order under R.C. 2505.02.” Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292, 1294. See, also, State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 37 O.O.2d 358, 222 N.E.2d 312. In this case, then, the trial court’s denial of appellee’s first motion for summary judgment was not the trial court’s judgment, but only an interlocutory decision that merged into the final judgment in favor of appellee.

By overruling Vaccariello’s assignment of error related to appellee’s second motion for summary judgment, the appellate court properly affirmed the ultimate judgment of the trial court. This affirmance meant that the judgment of the trial court remained unchanged, despite the fact that the court of appeals found a decision of that court erroneous in appellee’s cross-appeal. Notably, appellee never sought to change the judgment of the trial court. Rather, by cross-appealing the denial of the first summary judgment motion, appellee sought to “change * * * an interlocutory ruling merged into the [trial court’s] judgment” only “in the event the judgment or order may be reversed or modified” — which means only in the event that Vaccariello prevailed in her ultimately unsuccessful appeal. App.R. 3(C)(1). Because the court of appeals affirmed the judgment of the trial court, for whatever reason, the appellate court should have properly described its disposition only as an affirmance. Cf. Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 174 (“a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof’). The fact that the court of appeals determined that the trial court erred in not granting the first motion for summary judgment provided only an additional ground for the trial court’s judgment in favor of appellee. It did not, however, change the nature of the judgment or require a reversal of any part of that judgment.

*387Accordingly, the court of appeals should have described its disposition of the cause as “judgment affirmed.” Today’s lead opinion, by phrasing its disposition as “Judgment affirmed as modified ” (emphasis added), implicitly recognizes the erroneous dual nature of the court of appeals’ disposition. My concurring in judgment only is based on my understanding that today’s judgment is intended to correct the court of appeals’ wording: Both this court and the lower appellate court have simply affirmed the judgment of the trial court, albeit for varying reasons.

II

A majority of this court cite United States Supreme Court precedent to support the determination that a dismissed federal class action tolls the running of the applicable Ohio statute of limitations for Ohio plaintiffs, thus preserving otherwise stale claims. At the same time, the majority stresses that it reaches its holding independent from that authority, which it deems not binding on this court. I agree that the United States Supreme Court’s American Pipe/Crown, Cork & Seal/Chardon rule — that federal class actions toll federal statutes of limitations and potentially state statutes of limitations applicable in federal courts—does not dictate the result here. See Am. Pipe & Constr. Co. v. Utah (1974), 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713; Crown, Cork & Seal Co., Inc. v. Parker (1983), 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628; Chardon v. Fumero Soto (1983), 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74. Cf. Bd. of Regents v. Tomanio (1980), 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440. But, see, Adams Pub. School Dist. v. Asbestos Corp., Ltd. (C.A.8, 1993), 7 F.3d 717, 719 (diversity case in which court viewed American Pipe broadly, stating that in addition to state-sanctioned tolling, “we view the federal interest here as sufficiently strong to justify tolling in a diversity case when the state law provides no relief’). Although cognizant of the view that the federal class action tolling practice preempts conflicting state law, I also agree with the majority’s assertion that the practice is not binding on states. See, generally, Lowenthal & Feder, The Impropriety of Class Action Tolling for Mass Tort Statutes of Limitations (1996), 64 Geo.Wash.L.Rev. 532 (discussing view that Fed.R.Civ.P. 23 compels tolling of state claims via the Rules Enabling Act). See, also, Wade v. Danek Med., Inc. (C.A.4, 1999), 182 F.3d 281, 288-290. But I cannot agree that the majority’s independent grounds — ie., Ohio law — mandates cross-jurisdictional tolling.

To justify its decision to modify Howard, today’s majority quotes a law review article as stating that “ ‘the majority of states which have considered the tolling doctrine [of American Pipe and its progeny] have accepted it.’ ” The full quote, however, belies the slant of the abbreviated quote offered by the majority opinion. The law review actually counsels:

*388“Although the majority of states which have considered the tolling doctrine have accepted it, the rule is not without its critics and should not be blindly adopted.” (Footnotes omitted and emphasis added.) Gallacher, Representative Litigation in Maryland: The Past, Present, and Future of the Class Action Rule in State Court (1999), 58 Md.L.Rev. 1510, 1550-1551.

Moreover, the Supreme Court of Illinois disagrees with the contention that a majority of jurisdictions that have addressed the issue have favored cross-jurisdictional tolling:

“Although plaintiffs assert that the majority of courts which have considered this issue have chosen to adopt cross-jurisdictional tolling to preserve claims under state” law, our research indicates precisely the opposite. * * * At any rate, it is apparent that very few states to date have even considered the issue of cross-jurisdictional tolling, let alone adopted it.” (Citations omitted.) Portwood v. Ford Motor Co. (1998), 183 Ill.2d 459, 465-466, 233 Ill.Dec. 828, 701 N.E.2d 1102, 1104, certiorari denied (1999), 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53.

Even assuming arguendo that a majority of those states that have addressed the issue do favor cross-jurisdictional tolling, it is unclear why the majority notes this fact when the majority purports to base its decision on Ohio law. The holdings of other jurisdictions would be of little use, then, without an explication of the rationale behind those decisions. The majority does not, for example, examine whether analogous rules enacted in those jurisdictions permit cross-jurisdictional tolling. If the jurisdictions do not have such rules, then the majority’s reference to these unnamed jurisdictions is puzzling. In the absence of other jurisdictional rules favoring cross-jurisdictional tolling, we are left with only the possibilities that those jurisdictions view Fed.R.Civ.P. 23 or federal common law as mandating such tolling — propositions that the majority rejects by “regarding the federal cases discussed as [not] binding on this court.”

Regardless of the actual number of jurisdictions that favor such tolling, stare decisis and judicial restraint counsel against it. Cross-jurisdictional tolling is a public policy matter involving issues of a forum’s control over its own judicial proceedings. The Supreme Court of Illinois explained:

“[B]ecause state courts have no control over the work of the federal judiciary, we believe it would be unwise to adopt a policy basing the length of Illinois limitation periods on the federal courts’ disposition of suits seeking class certification. State courts should not be required to entertain stale claims simply because the controlling statute of limitations expired while a federal court considered whether to certify a class action.” Portwood, 183 Ill.2d at 466, 233 Ill.Dec. 828, 701 N.E.2d at 1104. See, also, Wade, 182 F.3d at 288 (diversity action in which court of appeals held that Virginia would not adopt a cross-jurisdictional tolling rule).

*389I agree, and our reasoning in Howard buttresses this rationale. Hotvard interpreted a codified policy choice that confined a statute-of-limitations exception to actions commenced or attempted to be commenced in the state of Ohio. Howard, 30 Ohio St.2d at 135, 59 O.O.2d at 151, 283 N.E.2d at 170 (interpreting R.C. 2305.19 as restricted “to suits * * * commenced or attempted to be commenced in Ohio prior to the running of Ohio’s statute of limitation, * * * in the absence of some manifest legislative intent to the contrary”). Underlying this policy choice is the premise that states “simply ha[ve] no interest, except perhaps out of comity, in furthering the efficiency and economy of the class action procedures of another jurisdiction, whether those of the federal courts or those of another state.” (Footnote omitted.) Wade, 182 F.3d at 287 (deciding issue under Virginia law); Maestas v. Sofamor Danek Group, Inc. (Tenn.2000), 33 S.W.3d 805, 808. Cf. Vaught v. Showa Denko K.K. (C.A.5, 1997), 107 F.3d 1137, 1147 (holding that “the federal interest in [class action tolling] does not trump the Texas tolling rule,” given that the rule’s enforcement of statutes of limitations is of “considerable importance to Texas”).

As this court stated in Howard, statutes of limitations “ ‘represent a public policy about the privilege to litigate.’ * * * The Ohio saving clause, R.C. 2305.19, being part of Ohio’s scheme of limitations, is within this policy-making prerogative of the General Assembly.” Id., 30 Ohio St.2d at 137-138, 59 O.O.2d at 152, 283 N.E.2d at 171, quoting Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635. Although a class action filed in federal court may indeed serve the same purpose as a class action filed in Ohio, the weight Ohio assigns to the efficiency and economy of litigation in her own courts versus those courts in distinct jurisdictions is a public policy choice. Cf. Vaught, 107 F.3d at 1147. Determining the soundness of that public policy for Ohioans is properly the role of the General Assembly. Because the General Assembly has not altered the codified public policy that this court interpreted in Howard —there has been no “manifest legislative intent” contrary to Howard stare decisis ought to dictate our decision here. Nonetheless, today’s majority sets forth a public policy determination without presenting a legitimate reason for being able to do so and without discussing in depth the language of the statute of limitations or savings statutes it purports to address.

Ill

For the foregoing reasons, I agree with the court of appeals that the filing of the failed class action did not toll the statute of limitations in this case; Vaccariello’s claim was time-barred. Because dismissal on the basis of the statute of limitations moots all other issues, I express no opinion here on whether the learned intermediary doctrine applies to prescribed medical devices.

Moyer, C.J., concurs in the foregoing opinion.