Fields

This consolidated appeal involves wrongful-death actions filed in two different federal district courts sitting in diversity. Acting as personal representative of the estate of his late wife, Laura Fields, George Fields brought an action for wrongful death against Legacy Health System (“Legacy”) in the United States District Court for the Western District of Washington. The complaint alleged that Legacy negligently caused Laura Fields’ death by failing to diagnose her cervical cancer from a Pap smear, and sought damages for Raven Fields-, a minor child of George and Laura Fields. Subsequently, George Fields filed an identical action in the United States District Court for the *949 District of Oregon. The Oregon federal district court applied Oregon’s statutes of limitations and repose to dismiss George Fields’ case with prejudice, denied him leave to amend his complaint, and denied his motion to certify state constitutional questions to the Oregon Supreme Court. Thereafter, the Washington federal district court dismissed George Fields’ Washington action based on Oregon’s statutes of limitations and repose, as well as on collateral estoppel grounds.

George Fields appeals these…

concurring.

I write separately and additionally to express regret that we have no ability, in this diversity case, to reexamine controlling Oregon precedent on the state constitutional remedy clause issue and to allow a remedy to be given to the decedent’s daughter. The Oregon Supreme Court and its intermediate appellate courts have consistently held that there was no common law right to recover for wrongful death. The Oregon Supreme Court has twice expressed misgivings about its precedent. Storm v. McClung, 334 Or. 210 , 47 P.3d 476 , 482 & n. 4 (2002) (explaining that “[t]his court has previously has been apprised of the questionable premise underlying the widely held view that there was no common-law action for wrongful death [and] acknowledged as much” but declining to consider the question because it “is beside the point in this case”); Goheen v. Gen. Motors Corp., 263 Or. 145 , 502 P.2d 223, 225-27 (1972) (reviewing history of wrongful death actions in Oregon and stating that “[although there may be some merit in that view [that Oregon had a common law right of action for wrongful death], our own previous decisions are to the contrary, and we prefer to rest our decision in…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE FIELDS, personal  representative of the Estate of Laura Fields, Plaintiff-Appellant, No. 03-35386 v.  D.C. No. LEGACY HEALTH SYSTEM, an CV-03-00048-KI Oregon Corporation, dba/Legacy Laboratory Services. Defendant-Appellee.  Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding

GEORGE FIELDS, personal  representative of the Estate of Laura Fields; ESTATE OF LAURA FIELDS, No. 03-35587 Plaintiffs-Appellants, v.  D.C. No.

CV-02-02548-TSZ

LEGACY HEALTH SYSTEM, an OPINION Oregon Corporation, dba/Legacy Laboratory Services. Defendant-Appellee.  Appeal from the United States District Court for the District of Washington Thomas S. Zilly, District Judge, Presiding

7395 7396 FIELDS v. LEGACY HEALTH SYSTEM Argued and Submitted September 14, 2004—Portland, Oregon

Filed June 22, 2005

Before: Susan P. Graber, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges.

Opinion by…