United States Court of Appeals
Fifth Circuit
F I L E D
In the August 9, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-51125
_______________
NITA HAYNES JOHNSON,
INDIVIDUALLY AND AS NEXT FRIEND OF TALAYA HAYNES, A MINOR,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, GARZA, and CLEMENT, summary judgment motion was late according
Circuit Judges. to the pretrial order, nonetheless considered it
because the government cited caselaw sug-
JERRY E. SMITH, Circuit Judge: gesting that the issue is jurisdictional and thus
could be considered at any time. The court
Nita Johnson, individually and as next further noted that Johnson did not contest
friend of Talaya Haynes, her minor daughter, whether the statute of limitations is jurisdic-
filed this Federal Tort Claims Act (“FTCA”) tional. Johnson appeals, arguing that the court
action, and the district court granted summary did not have authority to address the late sum-
judgment for the United States based on John- mary judgment motion and incorrectly held
son’s failure to file her administrative claim that limitations had run. We affirm.
within two years after accrual pursuant to 28
U.S.C. § 2401(b). The court, noting that the
I. cerebral palsy and referred Talaya to the
Johnson was seventeen years old and preg- Tennessee Early Intervention System
nant; she received pre-natal care at Blanchfield (“TEIS”). Humberd recalled that at the No-
Army Community Hospital. During a pre-natal vember 21 visit he obtained most of the his-
checkup on April 20, 1994, a nonstress test was tory from Johnson and that he learned that
ordered to monitor the fetal heart rate. The Talaya had had a difficult birth, including as-
results showed variable decelerations, so John- phyxia. He indicated that he was trying to
son was admitted to the labor and delivery ward. relate what the mother was describing about
the problems at birth to the developmental
problems he was noticing.
The following day, by means of a “crash
cesarean section” procedure, Johnson gave birth On December 2, TEIS received the refer-
to Talaya. Medical records show that she was ral of Talaya from the clinic; the reason giv-
floppy, apneic (suffering from an absence of en for referral was possible cerebral palsy.
breathing), and dusky at birth and “was without The intake form indicated (in the section
a heart rate or respiratory effort.” There were containing information provided byJohnson)
two unsuccessful efforts to resuscitate her by that Talaya had not been breathing when
providing oxygen, before a third effort succeed- born and had spent two weeks in the hospital
ed. Talaya was placed on a ventilator. on oxygen and that Johnson had had a
C-Section because Talaya’s heart rate had
In her deposition, Johnson remembered that, dropped.
at Talaya’s four-month checkup, a nurse had
been concerned about her daughter and had told A developmental assessment of Talaya
her that Talaya was not doing what she was was conducted in January 1995, after which
supposed to be doing at four months. Johnson she was seen by the assessor for an hour
later gave a medical history to Nancy Trent, a each week from March 1995 until June 27,
pediatric nurse practitioner at a children’s clinic 1996, when Johnson moved to Texas. Some
on November 17, 1994, when Talaya was about time during this period, the assessor was told
seven months old. From her observations of by Johnson that “it might have happened at
Talaya and her history taken from Johnson, birth” and that she had contemplated suing
Trent reported that Talaya was very rigid, espe- the Army. In cross-examination, the as-
cially in the upper body, had exaggerated, de- sessor clarified that Johnson had not said
veloped triceps and biceps to hold her torso up, that she had been told that the doctors or
did not breathe at birth for five minutes, and had nurses had been negligent or that anyone had
neo-natal seizures. done anything wrong, but only that Johnson
“thought that it might have happened at
On November 21, 1994, Trent referred Tala- birth.”
ya to a pediatrician, Quentin Humberd, who
stated that he had seen Talaya because of con- On February 3, 1995, at a nine-month ex-
cerns of developmental motor delay; after an amination, Humberd assessed Talaya’s con-
examination, he concluded that Talaya had neu- dition as consistent with a static encephalo-
rological findings that were beyond the range of pathy (brain dysfunction) “and most likely
normal for her age. Humberd wanted to rule out Cerebral Palsy.” Humberd recalled that
2
Johnson had come back in for a conference at Medical Center in El Paso. Johnson recalled
which he had explained to her that her daugh- that, after the baby’s heart rate dropped, the
ter’s problems were not from viral infection or doctors delivered Tatyana by C-section.
another degenerative condition but instead were
the result of something that had happened at Johnson recalled no one telling her that
some specific time, an event such as low oxygen Tatyana had stopped breathing at birth. In
or trauma. He then gave her a handout on her deposition, Johnson testified that in
cerebral palsy and a reading list about support 2000, over two years after her second daugh-
“so that [she] could talk to other families . . . ter’s birth, she “saw a commercial on TV
that had cerebral palsy, et cetera.” about cerebral palsy,” a “lawyer’s commer-
cial . . . saying if your child has cerebral pal-
Humberd explained in his deposition that he sy this might be the reason.” She testified
suspected an association between Talaya’s brain that she contacted her lawyers “[r]ight after”
injury and her birth by emergency C-section. He seeing the commercial. On May 10, 2001,
explained that he did not definitively know what she filed an administrative claim, and she
had caused Talaya’s cerebral palsy, so he did not sued on December 27, 2002.
tell Johnson, during their February 3 discussion,
specifically what had caused the brain damage. II.
Nonetheless, he did “entertain a ‘differential Johnson argues that the district court did
diagnosis’ that there was a connection between not have authority to address the late-filed
Talaya’s birth trauma and [her] cerebral pal- summary judgment motion, because the
sy”and “presented it to Mrs. [] Johnson as ‘one FTCA’s statute of limitations is not jurisdic-
of the potential causes of why a child can have tional. We agree with the district court’s
this kind of problem . . . .” decision, however, because even if that stat-
ute of limitations were not jurisdictional (an
On March 13, 1995, Johnson was interviewed issue that, as the district court noted, ap-
by a physical therapist, Gay Lynn Westover. In pears to be undecided by this court), the
her notes of that meeting, Westover stated that district court had authorityto grant summary
she was told by Johnson that Talaya had had judgment notwithstanding the fact that the
breathing problems at birth, a decreased heart motion was filed later than provided in the
rate, had been in an incubator, and had experi- pretrial order.
enced developmental delays as early as three
months after birth. Eventually, Talaya was given “A party against whom a claim, counter-
a definitive diagnosis of cerebral palsy, most claim, or cross-claim is asserted or a declara-
likely in April 1995, when she was twelve tory judgment is sought may, at any time,
months old. move with or without supporting affidavits
for a summary judgment in the party’s favor
In the summer of 1996, Johnson and Talaya as to all or any part thereof.” FED. R. CIV.
moved to Texas, where Talaya continued to P. 56(b) (emphasis added). Because here
receive medical care through the Army. On June the defendant moved for summary judgment
6, 1997, Johnson gave birth to another daughter, before trial, the motion was timely under rule
Tatyana, who has shown no subsequent signs of
developmental problems, at Beaumont Army
3
56(b). 1 Though the caselaw expresses some The violation of the pretrial order does
concerns about the granting of summary judg- not warrant reversal. Rule 16(f) provides for
ment motions on the eve of trial, Guillory, 95 sanctions that are “just” for violations of
F.3d at 1328, this is not an issue in this case, pretrial orders. See FED. R. CIV. P. 16(f).
because the motion was filed a month in advance Johnson did not argue, in the district court,
of the date set for trial.2 that the summary judgment motion was late
or that sanctions should be imposed under
1
rule 16(f). Therefore, she waived these
See Guillory v. Domtar Indus., 95 F.3d 1320, arguments for the purpose of appeal.3
1328 (5th Cir. 1996) (“The timing of the summary
judgment does not warrant reversal in this case. Rule
A closer issue is whether a pretrial order
56(b) allows a defendant to move for summary
judgment at any time. Accordingly, the court may
can abridge rights granted to defendants un-
grant summary judgment any time before trial.”). der FED. R. CIV. P. 56(b). 4 It is uncertain
2
Further, the ten-day notice requirement of rule
56(c) was satisfied. As we explained in Daniels v. 2
(...continued)
Morris, 746 F.2d 271, 274-75 (5th Cir. 1984), district court did not advise them of when it
would decide the summary judgment motion).
Under Fed. R. Civ. P. 56(c) “the motion [for sum-
mary judgment] shall be served at least 10 days 3
Little v. Liquid Air Corp., 37 F.3d 1069,
before the time fixed for the hearing.” This rule 1071 n.1 (5th Cir. 1994) (per curiam) (en banc)
does not by implication require the district court (citing Topalian v. Ehrman, 954 F.2d 1125,
to hold an oral hearing. As we have previously 1132 n.10 (5th Cir. 1992), and explaining that
interpreted it, the rule requires only that, if there this court’s inquiry “is limited to the summary
is an oral hearing, there be ten-days advance judgment record and the plaintiffs may not ad-
notice; if there is not a hearing, the adverse party vance on appeal new theories or raise new issues
must have at least ten days to respond to the not properly before the district court to obtain
motion for summary judgment. Rule 56(c) does reversal of the summary judgment”).
not require that a party be given advance notice of
4
a “date certain” on which a motion for summary Compare Manetas v. Int’l Petroleum Carri-
judgment is to be decided by the trial court. ers, Inc., 541 F.2d 408, 413 (3d Cir. 1976)
(holding that “the 45-day Pre-Trial Order limita-
Although no hearing was held, Johnson had the tion for filing motions for summary judgment
opportunity to respond to the motion and in fact did was not a bar to a later filing because Fed. R.
so. Therefore, the requirements of rule 56(c) were Civ. P. 56(b) expressly authorizes a ‘defending
met. See id. at 276-77 (“When, as here, the parties party’ to move ‘at any time’ for a summary
have been given ample opportunity to respond to the judgment”), with Julian v. Equifax Check Servs.,
motion for summary judgment, the district judge may 178 F.R.D. 10, 16 (D. Conn. 1998) (“The Su-
rule on it even after a significant delay, without preme Court did not intend Federal Rule 16(b)(2)
giving the parties advance notice of the court’s to be ignored when a party filing a summary
intention to consider and decide the motion on a “date judgment motion invokes the ‘at any time’ lan-
certain.”); see also Hamman v. Southwestern Gas guage of Federal Rule 56. The ‘at any time’
Pipeline, Inc., 721 F.2d 140 (5th Cir. 1983) (stating provision of Federal Rule 56 for filing summary
that where appellants had filed a responsive brief, the judgment motions must be interpreted to be
requirements of Rule 56(c) were satisfied even if the subject to the case management dictates of Fed-
(continued...) (continued...)
4
whether the “case management dictates” of rule Further, it is the scheduling order, not
16(b) must necessarily prevail over the “at any rule 16(b) per se, that conflicts with rule
time” dictates of rule 56(b), and not vice versa. 56(b). Because not even local court rules
There is no indication that one interest is greater can diminish rights afforded to parties by the
than the other, in either rule 16(b) or the advi- rules,5 it is questionable whether scheduling
sory notes. Rule 16(b) could certainly also be orders can do so. We need not decide that
interpreted to read in harmony with rule 56(b): question here, because Johnson waived the
Although the district court may impose time timeliness argument and did not respond to
limits for filing motions, it cannot restrict the the government’s rule 56(b) argument on
limits that are already expressly provided by the appeal.
rules.
We also note that Johnson did not argue,
Also unresolved is whether the “case manage- in the district court, the FTCA’s statute of
ment” concerns are valid in situations such as limitations is not jurisdictional; in that court
this one, in which the motion for summary judg- she merely argued that the court had juris-
ment is filed one month in advance of trial. diction because limitations had not expired.
Surely, a defendant who waits that late to file for As we have observed, she may not raise, on
summary judgment runs the risk that its motion appeal, theories that she did not raise before
will be denied because the district court may not the district court. The rule that jurisdictional
have enough time to look at it carefully. issues may not be waived but can be raised
This does not mean, however, that “at any at any time is not invoked in this case. That
time” in rule 56(b) means anything less than rule is grounded on the principle that be-
what it says. If the motion is denied, the court cause federal courts are courts of limited
system is in the same position as if the defendant
were not permitted to file at all at that time: The
case would go to trial. In the rare case in which
a motion for summary judgment will be granted
even if it is filed only one month before trial, the
plaintiff suffers no prejudice. 5
Brown v. Crawford County, Ga., 960 F.2d
1002, 1008 (11th Cir. 1992) (invalidating local
rule that restricted the right to file a summary
judgment motion because “[d]istrict courts . . .
4
(...continued) must not circumvent the Federal Rules of Civil
eral Rule 16(b).”). See also Lemon v. Dugger, 931 Procedure by implementing local rules or ‘proce-
F.2d 1465 (11th Cir. 1991) (upholding denial of dures’ which do not afford parties rights that
motion for summary judgment filed outside of sched- they are accorded under the Federal Rules.”); see
uling order and suggesting that rule 16(b) prevails also Carver v. Bunch, 946 F.2d 451, 453 (6th
over rule 56(b)); Kennedy v. City of Cleveland, 797 Cir. 1991) (“[L]ocal court rules . . . cannot
F.2d 297, 301 & n.6 (6th Cir. 1986) (“Although Fed. conflict with the Federal Rules of Civil Proce-
R. Civ. P. 56(b) states that a defendant may move for dure, Acts of Congress, and rules of practice and
summary judgment ‘at any time,’ we do not believe procedure prescribed by the Supreme Court.”);
that this precludes the district court from controlling Coady v. Aguadilla Terminal Inc., 456 F.2d
the proceedings before it, at least not to the extent of 677, 678 (1st Cir. 1972) (“[A] local rule cannot
requiring it to consider disruptive motions on the eve be applied if it is contrary to a federal statute or
of trial.”). rule.”)).
5
jurisdiction,6 the parties cannot confer subject that Johnson knew about the injury more
matter jurisdiction “by indolence, oversight, than two years before she filed her claim,
acquiescence, or consent.” United States v. most likely in April 1995, when Talaya was
Horn, 29 F.3d 754, 768 (1st Cir. 1994). John- about a year old (which was about six years
son’s challenge is not that subject matter juris- before Johnson filed her claim). The dispute
diction improvidentlyor erroneouslyexisted, but is whether she knew, or “in the exercise of
that the district court should not have considered reasonable diligence should [have] dis-
the late-filed motion. That is an argument she cover[ed],” the cause of Talaya’s injury.
waived by not asserting it in the district court. MacMillan v. United States, 46 F.3d 377,
381 (5th Cir. 1995) (quoting Harrison v.
III. United States, 708 F.2d 1023, 1027 (5th Cir.
Section 2401(b) bars a tort action against the 1983)). “The putative plaintiff [] need not
federal government unless the claim is first pre- know the legal or medical significance of an
sented to the appropriate federal agency “within act or an injury for the cause of action to
two years after such claim accrues.” United accrue.” Id. “Instead, the limitations period
States v. Kubrick, 444 U.S. 111, 113 (1979) begins to run when the plaintiff has ‘knowl-
(citing § 2401(b)). The statute does not define, edge of facts that would lead a reasonable
however, when a claim “accrues.” Johnston v. person (a) to conclude that there was a
United States, 85 F.3d 217, 219 (5th Cir. 1996). causal connection between the treatment and
The general rule under the FTCA is that a tort injury or (b) to seek professional advice, and
action accrues at the time of a plaintiff’s injury. then with that advice, to conclude that there
Kubrick, 444 U.S. at 120. For FTCA medical was a causal connection between the treat-
malpractice cases, however, Kubrick adopted a ment and injury.’” Id. (quoting Harrison,
“discovery rule” for claim accrual, under which 708 F.2d at 1027) (emphasis added).
the time starts to run when the plaintiff has the
information necessary to discover “both his in- We agree with the district court that
jury and its cause.” Id. This is because, where MacMillan controls and that a reasonable
“the injury or its cause may not be manifested to person in Johnson’s position would have
the plaintiff until many years after the event,” the been aware of enough facts to trigger the
tort action should not accrue, for statute of statute of limitations more than two years
limitations purposes, “until the plaintiff is put on before she filed her claim. In MacMillan, a
notice of the wrong.” Waits v. United States, case also involving birth problems resulting
611 F.2d 550, 552 (5th Cir. 1980). in neurological injury, we held that a plaintiff
with knowledge of the injury and of a “prob-
As the district court noted, there is no dispute able” cause of that injury had a duty “to
inquire in the medical and legal community”
and “to seek professional advice regarding
6
Federal courts are courts of limited jurisdiction
[the baby’s] neurological difficulties and the
having subject matter jurisdiction only over those connection, if any, to the problems associ-
matters specifically designated by the Constitution or ated with her birth.” 46 F.3d at 381.
Congress. Epps v. Bexar-Medina-Atascosa Counties
Water Improvement Dist., 665 F.2d 594, 595 (5th Johnson’s attempt to distinguish MacMil-
Cir. 1982); B., Inc. v. Miller Brewing Co., 663 F.2d lan is unconvincing. She argues that in
545, 548 (Former 5th Cir. Dec. 1981).
6
MacMillan the plaintiff “knew” about the cause have “sought advice” about the connection
of the injury, which satisfied Kubrik’s require- between the two.
ment that both injury and its cause must be
“known” before limitations can run. But in Johnson’s contention that she did not
MacMillan the plaintiff did not know what the know of the potential connection between
cause of the injury was; she only knew about a birth injury and cerebral palsy because, when
potential cause.7 Humberd told her about the connection,
Talaya had not been fully diagnosed with
Precisely because the “connection” between cerebral palsy, is questionable. In February
the birth problems and the neurological problems 1995, Humberd told Johnson that Talaya
was not fully known (only “probable”), might have cerebral palsy and that if she did,
MacMillan imposed a duty to seek advice once the most likely cause was an injury at birth.
this probable cause was revealed to the plaintiff The diagnosis of cerebral palsy was finalized
by the doctor, namely “to seek professional ad- in April 1995. Therefore, it is meritless to
vice regarding [the baby’s] neurological difficul- say that the three month lapse erased the
ties and the connection, if any, to the problems mother’s notice of the doctor’s statement
associated with her birth.” There would be no that if Talaya did have cerebral palsy, it was
need to “seek professional advice” about the potentially caused by injury at birth.
“connection” between the birth problems and the
injury if the “cause” of the injury was known. Johnson also argues that Osborn v. Unit-
ed States, 918 F.2d 724, 732 (8th Cir.
Similarly here, a potential (and most likely 1990), supports her argument, not the dis-
cause according to the differential diagnosis) trict court’s, because in that case the claim
was revealed to Johnson by Humberd, who ruled did not accrue even if the plaintiff had
out genetic issues, stroke, fetal infections such as learned of a “connection” between the injury
meningitis, congenital defects, and severe and the treatment. To the contrary, how-
prematurity, which left the most likely cause ever, there was no such “connection” drawn
“going back again to the history . . . an associa- in that case.
tion at [the] time that child was born that she
had to have [an] emergency C-section.” Hum- There, a doctor ordered that pertussis be
berd presented the birth problems to stopped, yet at no point was the pertussis
Haynes-Johnson as “one of the potential causes connected to the injury. In fact, the court
of why a child can have this kind of problem at held that it was not “Dr. Oksol’s statement
seven months of age, and sometimes that diag- [stopping pertussis] may have demonstrated
nosis can be delayed.” Therefore, in April 1995, understandable caution and conservative
armed with the diagnostic of cerebral palsy, and medical judgment, but it utterly failed to ad-
knowing about the possible connection between dress the issue of causation.” Id. at 733.
birth injury and cerebral palsy, Johnson should Additionally, in that case plaintiffs had rea-
son not to suspect that pertussis was the
cause, because Dr. Schuman had assured her
7
See MacMillan, 46 F.3d at 381 (“Dr. Pollard’s just before the fourth shot was given that it
report stated that, “it appears likely that Tanya suf- was “perfectly safe.” Id. at 726. In contrast,
fered anoxia at birth and probably sustained some here Johnson does not contend that anyone
neurological damage as a result.”) (emphasis added).
7
had assured her that Talaya’s birth was perfectly reasons discussed by the district court.
uneventful and that cerebral palsy is never
caused at birth. AFFIRMED.
Johnson further contends that the claim did
not accrue until she saw the television commer-
cial in 2000, because until then she could not
connect Talaya’s cerebral palsy to negligent
treatment at birth. As the district court noted,
this type of argument was squarely rejected by
Kubrick, which explained that as long as the
nature and (potential) cause of the injury are
known, a plaintiff need not know that the injury
was negligently created.
Johnson knew that Talaya had cerebral palsy
and that a potential and likely cause was some-
thing that happened at birth. Thus, as Kubrick
explained, she did not need to know that the
treatment at birth was negligent, as long as she
knew that some injury could have occurred at
birth. Nor, as the district court correctly ob-
served, did she need to know exactly how the
injury was inflicted at birth (e.g., asphyxia or
improper administration of Pitocin).
Because MacMillan controls, we need not
decide the correctness of the district court’s al-
ternative holding, which is that Johnson does not
benefit from the discovery rule, because she
failed diligently to inquire about the cause of
Talaya’s injury.8 Last, we reject the remainder
of Johnson’s arguments with respect to when the
limitations period begins to run,9 for the same
9
(...continued)
reasonable person in her situation would do; (2)
8 whether circumstances related to Tatyana’s birth
See., e.g., Osborn, 918 F.2d at 732 (explaining
that “an injured plaintiff cannot claim the benefit of matter even if she was born in a different hospi-
the discovery rule simply by waiting passively for the tal in another state; (3) whether Johnson’s belief
cause of injury to be revealed”). that the cerebral palsy was mild matters; and (4)
whether the statute only began to run when she
9
These are the arguments concerning (1) whether saw a commercial related to cerebral palsy, even
the youth of the plaintiff matters in deciding what a if that commercial did not convey any new
(continued...) information.
8