Full Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0425n.06 No. 26-3059 UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 21, 2026 KELLY L. STEPHENS, Clerk BEVERLY R. MOWRY, Individually, as Executor ) of the Estate of, and as personal representative of the ) heirs and next of kin of, Deceased David C. Mowry, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Plaintiff-Appellant, ) COURT FOR THE ) NORTHERN DISTRICT OF v. ) OHIO ) UNITED STATES OF AMERICA, ) Defendant-Appellee. ) OPINION ) ) Before: BOGGS, GILMAN, and BUSH, Circuit Judges. BUSH, Circuit Judge. A United States Postal Service (USPS) truck hit David Mowry and severely injured him. He and his wife Beverly Mowry sued the United States, under the Federal Tort Claims Act (FTCA) (28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b)(1)), an Ohio statute prohibiting negligence while operating a motor vehicle (O.R.C. § 4511.43(A)), and a common- law claim for loss of consortium. They received a judgment in their favor for Mr. Mowry’s injuries and for Mrs. Mowry’s loss of consortium. Mr. Mowry later died, allegedly due to his injuries. With Mr. Mowry’s passing, Mrs. Mowry sued the United States again under the FTCA, this time bringing a new cause of action under Ohio’s wrongful-death statute (O.R.C. § 2125 et seq.). The district court dismissed the case after determining that federal res judicata principles apply to FTCA claims based on state personal-injury law and preclude Mrs. Mowry from recovering for her husband’s wrongful death. No. 26-3059, Mowry v. United States But the Ohio Supreme Court has ruled that wrongful death is a tort independent of the antecedent personal-injury claim and accrues only upon the victim’s death. And the FTCA makes the Government liable to the same extent as a private party in the same situation under state law. Consequently, we REVERSE the dismissal of Mrs. Mowry’s claims and REMAND this case to the district court for further proceedings in light of this opinion. I A USPS truck struck Mr. Mowry as he rode his motorcycle through an intersection in Ohio. Mr. Mowry held onto the truck’s grill as the vehicle dragged him along the street. The truck ran over his left leg before it stopped. After surgery, Mr. Mowry’s leg became infected and necrotic, requiring additional surgeries, skin grafts, and antibiotics. These treatments caused Mr. Mowry to develop kidney problems, ultimately resulting in acute renal failure and requiring dialysis. Mr. Mowry sued the United States under the FTCA for personal injury under the Ohio statute prohibiting negligence while operating a motor vehicle, and Mrs. Mowry sued for loss of consortium. After a bench trial, the district court held that the Mowrys had proven their claims and awarded damages. Mr. Mowry died shortly thereafter. Mrs. Mowry, as executor of Mr. Mowry’s estate and personal representative of his heirs and next of kin, then sued the United States again under the FTCA, this time with a claim based on Ohio’s wrongful-death statute, (O.R.C. § 2125 et seq.). The United States moved to dismiss, arguing that the earlier case precluded Mrs. Mowry’s wrongful-death claim under the doctrine of res judicata. The district court applied federal preclusion law and determined that, because the same parties were involved in both cases and the issue of the USPS driver’s negligence had already been decided in the Mowrys’ favor, Mrs. Mowry’s new wrongful-death claim was precluded. Mrs. Mowry appeals the dismissal and alleges -2- No. 26-3059, Mowry v. United States two errors: first, that the district court applied federal preclusion law instead of Ohio’s, and second, that the district court’s finding that her wrongful-death claim was precluded was improper. II We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 519 (6th Cir. 2011). We do the same for a district court’s application of the doctrine of res judicata. Id. A. Choice of Claim-Preclusion Law We start with a preliminary matter: does Ohio or federal law govern application of res judicata1 to an Ohio cause of action under the FTCA, and does it matter? The parties spill much ink on which jurisdiction’s preclusion law applies. But in the end, Mrs. Mowry concedes that Ohio and federal claim-preclusion law are “effectively the same.” Pet’r’s Br. at 9. The Government likewise does not point to any differences between the two that are material to this case. This circuit has a four-part test for claim preclusion under federal law: Under the doctrine, a party will be precluded by an earlier judgment if (1) the judgment was a final decision on the merits, (2) it involved the same parties (or parties who can be treated as legally the same), (3) the new claim or defense was litigated or should have been litigated in the prior action, and (4) an identity exists between the prior and present actions. Cont’l Cas. Co. v. Indian Head Indus., Inc., 941 F.3d 828, 835 (6th Cir. 2019) (cleaned up).2 1 Res judicata is an umbrella term that includes the doctrines of both claim preclusion and issue preclusion. Cont’l Cas. Co. v. Indian Head Indus., Inc., 941 F.3d 828, 835 (6th Cir. 2019). 2 The Government encourages us to use our phrasing of element three from GMAC Mortgage, LLC v. McKeever, 651 F. App’x 332, 341 (6th Cir. 2016), which states that if there is “an issue in the subsequent action which was litigated or which should have been litigated in the prior action,” res judicata may preclude further litigation. We decline to do so. The use of the word “issue” to apply to claim preclusion risks unnecessary confusion with the related doctrine of issue preclusion, and -3- No. 26-3059, Mowry v. United States Meanwhile, the Ohio Supreme Court uses a similar four-part test: (1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. AJZ’s Hauling, L.L.C. v. TruNorth Warranty Programs of N. Am., 236 N.E.3d 176, 182 (Ohio 2023) (alterations removed). Slight differences in phrasing aside, Ohio’s claim-preclusion test is substantively identical to that of this circuit and applying one or the other would not result in a different outcome. See Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 661 (6th Cir. 1990) (noting that in Ohio “the requirements for application of the doctrine of claim preclusion . . . are the same as those applicable in a federal court”). And given that neither party asserts any substantive difference, we need not decide which preclusion law applies to our case. B. Application of Claim Preclusion Turning to the substance of Mrs. Mowry’s appeal, she argues that the district court incorrectly held that her wrongful-death claims were precluded by the prior successful suit involving Mr. Mowry’s personal-injury claim and her derivative common-law loss-of-consortium claim. She admits that the first, second, and fourth parts of the test for claim preclusion are met, but she contends that the district court incorrectly decided that “the new claim or defense was we believe the verbiage used in Continental Casualty Company, 941 F.3d at 835, clarifies the difference between the two. -4- No. 26-3059, Mowry v. United States litigated or should have been litigated in the prior action.” Pet’r’s Br. at 8 (citing Cont’l Cas. Co., 941 F.3d at 835).3 “The central issue in a wrongful death action is whether a person’s wrongful act, neglect, or default caused the death of another.” Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994). But, of course, death eventually comes to us all, and it may not be the result of prior injuries. A wrongful act may cause an injury sufficiently long before death that the victim has already been fully compensated by means of a traditional personal-injury claim. When reviewing a wrongful-death claim under federal law, the Supreme Court noted that “a majority of courts interpreting state and federal wrongful-death statute[s] have held that an action for wrongful death is barred by the decedent’s recovery for injuries during his lifetime. But the bar does not appear to rest in those cases so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action.” Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 579 (1974) (dicta). The most common statutory language makes the wrongful-death claim derivative of the decedent’s claims at the time of death, and as “all civil remedies for wrongful death derive from statute,” the statutory language controls whether a particular wrongful-death statute prohibits recovery after a personal-injury judgment. Id. at 579- 82. The law at issue here is Ohio’s wrongful-death statute, so we must look to Ohio law for guidance. We defer to the Ohio Supreme Court’s interpretations of the Ohio wrongful-death statute. Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015) (“Federal courts generally 3 We have elected to default to the federal language, but the same result would apply if we used Ohio’s language for the third part instead, which reads “a second action raising claims that were or could have been litigated in the first action.” AJZ’s Hauling, L.L.C., 236 N.E.3d at 182. Our decision to use the federal language is for convenience and should not be understood as deciding which one controls for the reasons stated above. -5- No. 26-3059, Mowry v. United States defer to a state supreme court's interpretation of the state’s own statutes.”). In Thompson, the Ohio Supreme Court noted that longstanding Ohio statutory law defines wrongful death as an “independent cause of action” that is “not in the same right” as an earlier personal-injury or contemporaneous survival action. 637 N.E.2d at 922 (citing Mahoning Valley Ry. Co. v. Van Alstine, 83 N.E. 601 (Ohio 1908), and May Coal Co. v. Robinette, 165 N.E. 576 (Ohio 1929)). As a result, “the right to bring [a wrongful-death action] cannot depend on the existence of a separate cause of action held by the injured person immediately before his or her death.” Id. The Ohio Supreme Court specifically answered the question raised in this appeal, holding that because a “wrongful death action does not even arise until the death of the injured person . . . [,] the injured person[’s prior adjudicated claim] cannot defeat the beneficiaries’ right to have a wrongful death action brought on their behalf because the action has not yet arisen during the injured person’s lifetime.” Id. And because an Ohio wrongful-death action does not arise until a victim dies, such an action cannot be brought at the same time as personal-injury claim. This defeats the third part of the preclusion test—that “the new claim or defense was litigated or should have been litigated in the prior action”—and prevents federal res judicata principles from barring the claim based solely on an antecedent personal-injury claim. Cont’l Cas. Co., 941 F.3d at 835. Because of Ohio’s statutory definition of a wrongful-death claim, res judicata does not apply to disputes over a prior personal-injury claim. See Sea-Land, 414 U.S. at 579 (explaining that “the bar does not appear to rest . . . so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action”). Rather, the statutory language of the wrongful-death statute determines the “limitations on the wrongful-death action.” Id. Each state’s wrongful-death laws provide either that the claim is barred by a prior judgment because it is a -6- No. 26-3059, Mowry v. United States derivative claim, or that it is not barred because it is an independent claim based on the victim’s death. Id. The FTCA is explicit that “[t]he United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA thus “waives sovereign immunity to the extent that [Ohio law] would impose liability on a private individual in similar circumstances.” Chomic v. United States, 377 F.3d 607, 609 (6th Cir. 2004) (quoting Young v. United States, 71 F.3d 1238, 1241 (6th Cir. 1995)). Applying res judicata in federal court to bar non-derivative wrongful-death claims against the United States would improperly violate the decisions of state legislatures and the interpretation of state law by state supreme courts to apply the minority rule. Permitting the Government to escape liability in these circumstances would undermine Congress’s explicit statement of intent within the FTCA because the United States would be immune even when a “private individual under like circumstances” would not be. 28 U.S.C. § 2674. If Mrs. Mowry were able to bring her claim in an Ohio court, there is no question that she would be allowed to proceed because of the Ohio Supreme Court’s interpretation of the wrongful- death statute. To give life to Congress’s intent, the same must be true here. Thus, Mrs. Mowry’s claim is not precluded by her and her husband’s prior personal-injury and loss-of-consortium suit. The Government disagrees. It argues that Mrs. Mowry’s claim is also precluded by her original suit for loss of consortium, which she won and for which she received compensation. The Government contends that the presence of her loss-of-consortium claim distinguishes this case from Thompson. But the Government cites no caselaw supporting this argument and does not address how a loss-of-consortium claim precludes a later wrongful-death claim. Under Ohio law, loss-of-consortium claims are derivative of other torts. Bowen v. Kil-Kare, Inc., 585 N.E.2d 384, -7- No. 26-3059, Mowry v. United States 392 (Ohio 1992). Derivative claims are circumscribed by the primary cause of action from which they derive and “may not provide greater relief than that available under the primary cause of action.” Graham v. Am. Cyanamid Co., 350 F.3d 496, 515 (6th Cir. 2003). Mrs. Mowry brought a loss-of-consortium claim relating to Mr. Mowry’s initial personal- injury claim. Her claim was derivative of his personal-injury claim and thereby limited to her loss of consortium created by Mr. Mowry’s initial injury. But Ohio law treats wrongful death as a separate and non-derivative cause of action that only accrues upon the victim’s death. And under claim-preclusion rules, for Mrs. Mowry’s loss-of-consortium claim to preclude her wrongful-death claim, the wrongful-death claim must either have been brought, or should have been brought, at the time she brought her loss-of-consortium claim. Cont’l Cas. Co., 941 F.3d at 835. But, as noted above, the independent wrongful-death cause of action accrues only upon a victim’s death. Mrs. Mowry could not sue for, or be compensated for, the loss of consortium related to her husband’s wrongful death before that claim independently arose. Mrs. Mowry’s original loss-of-consortium claim thus does not preclude her wrongful-death claim. Both the district court’s opinion and the Government’s response largely rely on In re New York Asbestos Litigation, 738 F. Supp. 66 (E.D.N.Y. 1990). There, a district judge dismissed an earlier toxic-exposure personal-injury claim with prejudice because there was no evidence that the plaintiff had ever been exposed to an asbestos-containing product manufactured by the defendant. Id. at 67. After the plaintiff’s death, his estate sued the same defendant under New York’s wrongful-death statute. Id. at 68. The United States District Court for the Eastern District of New York ruled that because the plaintiff’s personal-injury claim was dismissed with prejudice for his failure to show that he was exposed to an asbestos-containing product manufactured by the -8- No. 26-3059, Mowry v. United States defendant, his estate was estopped from arguing that his death was caused by such an exposure, requiring dismissal of the claim. Id. at 68-69. In re New York Asbestos Litigation applied New York’s wrongful-death statute, which New York courts have ruled creates “a total bar against subsequent wrongful-death actions when the victim has previously received a judgment in a personal injury action.” In re Joint E. & S. Dist. Asbestos Litig., 726 F. Supp. 426, 433 (E.D.N.Y. 1989) (collecting cases). As the Supreme Court noted in Sea-Land, New York’s statute is consistent with wrongful-death statutes found in a majority of states. 414 U.S. at 579. But Ohio is not one of those states. Compare id. with Thompson, 637 N.E.2d at 921-24.4 Applying In re New York Asbestos Litigation here would permit the Government to evade liability for wrongful death, a result Ohio has specifically rejected, in violation the FTCA. In essence, affirmation would mean that this court would not only ignore Ohio’s law as applied to the United States, but also Congress’s own words. We decline to do so. III For the reasons stated above, we REVERSE the dismissal of Mrs. Mowry’s wrongful- death claim and REMAND this action to the Northern District of Ohio for further proceedings in accordance with this opinion. 4 For the same reason, the Government’s reliance on Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d 913, 916 (8th Cir. 2014), which applied Missouri’s majority-approach wrongful-death statute, is misplaced. -9-