Bobbie G. Bonham v. Glenn M. Weinraub, D.p.m.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1430
BOBBIE G. BONHAM,
Plaintiff - Appellant,
v.
GLENN M. WEINRAUB, D.P.M.,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:09-cv-00358-jct)
Submitted: January 10, 2011 Decided: February 24, 2011
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
James J. O’Keeffe, IV, Monica T. Monday, Lauren E. Davis,
GENTRY, LOCKE, RAKES & MOORE, LLP, Roanoke, Virginia, for
Appellant. Joseph M. Rainsbury, John T. Jessee, Nancy F.
Reynolds, LECLAIRRYAN, A PROFESSIONAL CORPORATION, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bobbie Bonham appeals the district court’s order
dismissing her civil action against Dr. Glenn M. Weinraub under
Fed. R. Civ. P. 12(b)(6). On appeal, Bonham contends the
district court erred in finding that her action was barred by
the statute of limitations. We agree.
A Rule 12(b)(6) motion to dismiss tests the legal
sufficiency of the complaint. Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008). In deciding a motion to dismiss, the
“judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). This court reviews de novo a district court’s
decision to grant a motion to dismiss pursuant to Rule 12(b)(6).
Laurel Sand & Gravel, Inc. v. Wilson
In a suit based on diversity of citizenship, the
substantive law of the forum state is controlling.
, 519 F.3d 156, 161 (4th
Cir. 2008).
Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938); Colgan Air, Inc. v.
Raytheon Aircraft Co., 407 F.3d 270, 275 (4th Cir. 2007).
Similarly, state statutes of limitations are considered
substantive law; therefore, if “the statute of limitations would
bar recovery in a State court, a federal court ought not to
afford recovery.” Guaranty Trust Co. v. York, 326 U.S. 99, 110
(1945).

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“Unless otherwise provided in this section or by other
statute, every action for personal injuries, whatever the theory
of recovery, and every action for damages resulting from fraud,
shall be brought within two years after the cause of action
accrues.” Va. Code Ann. § 8.01-243A (LexisNexis 2007).
In every action for which a limitation period is
prescribed, the right of action shall be deemed to
accrue and the prescribed limitation period shall
begin to run from the date the injury is sustained in
the case of injury to the person . . . except . . .
where . . . otherwise provided under § 8.01-233,
subsection C of § 8.01-245, §§ 8.01-249, 8.01-250 or
other statute.
Va. Code Ann. § 8.01-230 (LexisNexis 2007). Section 8.01-249
provides that a cause of action for fraud accrues “when such
fraud . . . is discovered or by the exercise of due diligence
reasonably should have been discovered.”
In dismissing Bonham’s action, the district court
found that, in order to “avoid the personal injury statute of
limitation,” Bonham characterized Dr. Weinraub’s tortious
actions as fraudulent. The district court concluded that this
characterization had no bearing on the applicable statute of
limitations, applying the reasoning that “an action to recover
for personal injuries is, in essence, a personal injury action,
and regardless of whether it is based upon an alleged breach of
an implied warranty or upon an alleged tort, the limitations
statute governing actions for personal injuries is controlling.”

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Friedman v. Peoples Serv. Drug Stores, Inc.
We conclude the district court reached an incorrect
conclusion. Here, the parties agreed that the limitations
period in question is two years, as prescribed in § 8.01-243A.
The parties differed, however, as to when Bonham’s cause of
action accrued. Under the framework proposed by the Defendants
and adopted by the district court, § 8.01-230 applied,
establishing that Bonham’s cause of action accrued on the date
of the injury. In this instance, this would be June 9, 2005,
the date of Bonham’s surgery. However, Bonham argues that
§ 8.01-249 applies, establishing that her cause of action
accrued on the date she discovered or reasonably should have
discovered Dr. Weinraub’s alleged fraud. This date was sometime
in October 2007, when she consulted other doctors about her
condition.
, 160 S.E.2d 563, 565
(Va. 1968).
Virginia courts determine the applicable statute of
limitations by reference to “the object of the litigation and
the substance of the complaint, not the form in which the
litigation is filed.” Kappa Sigma Fraternity, Inc. v. Kappa
Sigma Fraternity, 587 S.E.2d 701, 707 (Va. 2003). After
reviewing the record, we conclude that the district court
erroneously characterized Bonham’s action as one for negligence
and therefore incorrectly applied the accrual rules of § 8.01-

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230. In her complaint, Bonham properly alleged facts and
arguments giving rise to a cause of action for fraud, on which
her reliance resulted in unnecessary surgery and additional pain
and suffering. City of Richmond, Va. v. Madison Management
Group, 918 F.2d 438, 447 (4th Cir. 1990) (stating elements of
fraud). Both the object of the litigation and the substance of
the complaint indicated that Bonham’s action asserted Dr.
Weinraub’s intentional fraud, not an accidental misdiagnosis or
negligent treatment. Nor can we agree that Bonham’s assertion
of fraud is a mere pleading artifice to evade the statute of
limitation accrual rules that would attend a cause of action for
negligence. By pursuing a theory of fraud rather than
negligence, Bonham shoulders a different, and more challenging,
burden of proof. But that is the litigant’s prerogative, which
the district court should honor, at least at the pleading stage
of the litigation.*
The district court also erred in holding that any
fraud action alleged by Bonham would still be considered
malpractice under the definitions of the Medical Malpractice
Accordingly, we hold that the district court
erred in categorizing her action as one for negligence, rather
than fraud.
* We have no occasion to consider whether Bonham’s complaint
can or will survive an appropriate summary judgment motion or
other motion by the Defendant to seek judgment prior to trial.

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Act, Virginia Code. § 8.01-581.1, and would therefore be
governed by the statute of limitations provisions of § 8.01-
243C. As noted above, the two-year statute of limitations was
not in dispute. Rather, the issue is whether to apply the
general personal injury accrual rules provided by § 8.01-230, or
the specific fraud accrual rule found in § 8.01-249. By its
plain language, § 8.01-230 is limited by application of § 8.01-
249 in cases of fraud. Applying § 8.01-249, Bonham’s cause of
action accrued on the date that Dr. Weinraub’s alleged fraud was
discovered, in October 2007. Thus, her complaint, filed in
August 2009, was filed within the two-year limitations period.
Accordingly, we vacate the judgment of the district
court and remand for further proceedings consistent with this
opinion. We dispense with oral argument because the facts and
legal contentions are adequately expressed in the materials
before the court and argument will not aid the decisional
process.
VACATED AND REMANDED

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