TIMOTHY McGINLEY; CATHERINE McGINLEY, Individually and as Husband and Wife v. GEORGE W. McGINLEY, M.D.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-5562
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TIMOTHY McGINLEY;
CATHERINE McGINLEY,
Individually and as Husband and Wife
Appellants
v.
GEORGE W. McGINLEY, M.D.;
GEORGE W. McGINLEY, M.D., P.C.,
Individually and doing business as Optical Effects;
WALTER’S PHARMACY
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cv-03500)
District Judge: Bruce W. Kauffman
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Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: FISHER, STAPLETON and COWEN, Circuit Judges.
(Filed: November 1, 2007)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
This is a choice of law case with sad facts. Appellants including Timothy
McGinley (the plaintiff) initiated a medical malpractice action in the United States
District Court for the Eastern District of Pennsylvania against appellees including Dr.
George W. McGinley (the defendant). The District Court entered judgment for the
appellees because a California one-year statute of limitations barred the action. For the
reasons that follow, we will affirm.
I.
Because we write only for the parties who are familiar with the factual context and
procedural history of the case, we set forth only those facts necessary to our analysis.
From 1989 to 1993, the defendant, who practiced ophthalmology in Pennsylvania,
prescribed his nephew, the plaintiff, narcotic painkillers to treat his carpal tunnel
syndrome. The plaintiff apparently became addicted to the painkillers during this period.
From 1993 to 2002, the plaintiff sought treatment for his addiction and moved
from Pennsylvania to California. In June 2002, as the result of a work-related injury, he
was hospitalized and treated with narcotic painkillers, resulting in a relapse of his
addiction. After release from the hospital, the plaintiff again received narcotic
painkillers, this time through the mail from the defendant, who remained a Pennsylvania
resident.
On July 26, 2002, while allegedly under the influence of the painkillers provided
by the defendant, the plaintiff was involved in a single vehicle accident near Walnut

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Creek, California. As a result of the accident, the plaintiff was left with irreparable brain
damage, nerve damage, and other injuries. These injuries have had serious long-term
effects on the plaintiff’s ability to work and function.
On July 23, 2004, almost two years later, the plaintiff initiated this state-law
medical malpractice action against the defendant. The theory of the case is that the
defendant negligently diagnosed the plaintiff and prescribed the painkillers to him
without any examination of the patient, proximately causing the serious injuries from the
car accident. On December 5, 2005, in a written memorandum and order, the District
Court granted the defendant’s motion for judgment on the pleadings, on the basis that the
applicable statute of limitations barred the plaintiff’s action. The plaintiff filed a timely
notice of appeal.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s decision to grant a motion for judgment on the pleadings under
Fed. R. Civ. P. 12(c). In re McAllister Towing and Transp. Co., 432 F.3d 216, 219 (3d
Cir. 2005). A federal court sitting in diversity must apply the choice of law rules of the
forum state, which is Pennsylvania in the instant case. Kruzits v. Okuma Mach. Tool,
Inc., 40 F.3d 52, 55 (3d Cir. 1994). Under Pennsylvania’s Uniform Statute of Limitations
on Foreign Claims Act (the Borrowing Act), “[t]he period of limitation applicable to a
claim accruing outside this Commonwealth shall be either that provided or prescribed by
the law of the place where the claim accrued or by the law of the Commonwealth,

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whichever first bars the claim.” 42 PA . CONS. STAT . A NN . § 5521(b). A claim “accrues”
for purposes of section 5521(b) in the state “where as well as when the final significant
event that is essential to a suable claim occurs.” McKenna v. Ortho Pharm. Corp., 622
F.2d 657, 660 (3d Cir. 1980); accord Ross v. Johns-Manville Corp., 766 F.2d 823, 826
(3d Cir. 1985).
In the case at bar, the District Court properly identified California as the place
where the claim “accrued.” This is because the plaintiff’s car accident, which happened
in California, was the final significant event that was essential to his medical malpractice
claim. In both California and Pennsylvania, damages are a required element of medical
malpractice. Hanson v. Grode, 90 Cal. Rptr. 2d 396, 400 (Cal. Ct. App. 1999); Quinby v.
Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070 (Pa. 2006). Here, the
predominant source of damages is the car accident, after which there were no significant
events that happened to affect the claim.
It follows under the Borrowing Act that California’s statute of limitations applies
because it bars medical malpractice actions unless filed within “three years after the date
of injury or one year after the plaintiff discovers, or through the use of reasonable
diligence should have discovered, the injury, whichever occurs first.” CAL . CIV . PROC.
CODE § 340.5. The applicable Pennsylvania statute of limitations, by contrast, bars
claims after two years for all negligence actions. See 42 PA . CONS. STAT . A NN .
§ 5524(2). Under California’s statute, then, because the plaintiff here filed his action

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almost two years after he discovered his injury, i.e., at the time of the car accident, the
District Court properly entered judgment for the defendants.
The plaintiff’s only rebuttal to the foregoing analysis is that it would be “illogical”
to apply California’s statute of limitations in a case in which California could not exercise
personal jurisdiction over the defendant. But this is beside the point. Even assuming,
arguendo, that the plaintiff’s personal jurisdiction analysis is correct, it is well established
that personal jurisdiction and choice of law are distinct issues. See Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 372 n.4 (3d Cir. 2002); Ballard v. Savage, 65 F.3d 1495,
1501 (9th Cir. 1995). Courts have thus applied a jurisdiction’s statute of limitations
without regard to whether that jurisdiction could exercise personal jurisdiction over the
defendant. E.g., Ins. Co. of N. Am. v. ABB Power Generation, Inc., 690 N.E.2d 1249,
1253 (N.Y. 1997). Therefore, whether or not California could exercise personal
jurisdiction over the defendant does not affect whether any applicable California statute
of limitations should apply.
The plaintiff has one more arrow in his quiver, however. He argues that the
California statute of limitations that applies is the two-year general personal injury and
wrongful death statute, CAL . CIV . PROC. CODE § 335.1, rather than the one-year medical
malpractice statute, CAL . CIV . PROC. CODE § 340.5. He argues that this is because the
definition of “health care provider” in section 340.5(1) is limited to physicians licensed or
certified in California, which the defendant was not.

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Our review of the record indicates, however, that the plaintiff did not raise this
argument before the District Court. “It is well established that failure to raise an issue in
the district court constitutes waiver of the argument.” Brenner v. Local 514, United Bhd.
of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991). It is true that we have
discretion to decide issues that have been waived. Bagot v. Ashcroft, 398 F.3d 252, 256
(3d Cir. 2005).
However, besides the fact that we have characterized this discretion as
“exceptional,” id., an important factor in exercising the discretion in Bagot was that “the
proper resolution of the legal question, though not exactly simple, is reasonably certain.”
Id. Here, the correct resolution is far from certain. In Chosak v. Alameda County
Medical Center, 63 Cal. Rptr. 3d 184 (Cal. Ct. App. 2007), the intermediate appellate
court in California looked beyond the plain language in section 340.5 to hold that it
applies to “out-of-state doctor[s] legally practicing in California under the licensing and
certification exemptions of [the California Business and Professions Code].” Id. at 194.
Whether or not a further expansion should be made to cover all out-of-state physicians is
a question whose answer is not at all certain.
Moreover, another consideration in invoking the Bagot exception is whether an
issue’s resolution is of public importance. Bullock v. Dressel, 435 F.3d 294, 300 (3d Cir.
2006). Here, how the federal court of appeals in Philadelphia resolves the applicability of
California’s statute of limitations in a medical malpractice action is not of public

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importance because it has binding effect only on courts that rarely, if ever, will encounter
the issue again. Therefore, the Bagot exception should not apply in this case.
III.
Having concluded that the preserved appellate arguments that the plaintiff makes
are without merit, we will affirm the order of the District Court.

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