United States Court of Appeals
Fifth Circuit
F I L E D
September 15, 2006
In the United States Court of Appeals
for the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 04-60962
BARBARA HUSS; RODNEY HUSS,
Plaintiffs – Appellees,
v.
JOHN OVERTON GAYDEN, M.D.; MEMPHIS OBSTETRICS AND
GYNECOLOGICAL ASSOCIATION PC,
Defendants – Appellants.
Appeal from the United States District Court
for the Northen District of Mississippi
Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
In this medical malpractice case, we conclude that the applicable Mississippi statute
of limitations, MISS. CODE ANN. § 15-1-36, bars the claims at issue. We accordingly reverse
the district court’s judgment and render judgment that the plaintiffs take nothing.
I
Barbara Huss became Dr. Andrea Giddens’s patient at Memphis Obstetrics and
Gynecological Association PC (Memphis OB/GYN) on February 17, 1998. At that time,
Huss was twenty-seven weeks pregnant. Huss informed Dr. Giddens of her relevant medical
history, which included weight gain of between forty and fifty pounds during pregnancy,
continued cigarette smoking throughout pregnancy, one prior childbirth by Cesarean section,
three miscarriages, prior ovarian cysts, and the recent diagnosis of diabetes. Dr. Giddens
immediately concluded that Huss was a high-risk pregnancy and directed her to cease
working for the remainder of her pregnancy.
On March 8, 1998, Huss was feeling increased cramping and pressure and sought
treatment at Memphis OB/GYN. Her contractions were five-to-ten minutes apart, and she
thought she was in labor. The on-call physician, Dr. John Albritton, attempted to stop the
contractions and avoid premature childbirth. He did not see Huss, but instead communicated
by telephone with a nurse, first ordering intravenous hydration and the drug Stadol. When
the contractions continued, Dr. Albritton ordered injections of Terbutaline, and the
contractions ceased.
The next day, on March 9, 1998, a third Memphis OB/GYN physician, Dr. John
Gayden, treated Huss and continued to administer Terbutaline. The following day, Huss was
examined by Dr. Giddens, her principal attending physician at Memphis OB/GYN. Dr.
Giddens also prescribed oral Terbutaline for Huss, which was to be taken daily for several
weeks. Huss saw Dr. Giddens on more than one occasion thereafter, and as late as April 21,
1998, Huss was taking Terbutaline and had not been instructed to stop.
From March 8, 1998 until her child was delivered, Huss experienced various
symptoms that caused her to seek emergency treatment on more than one occasion. On May
5, 1998, Huss’s physical condition was such that an attempt to induce delivery was made but
2
was unsuccessful. Huss’s daughter was then successfully delivered by Caesarean section on
May 6, 1998, and Huss was discharged from the hospital May 9, 1998. The following day,
May 10, 1998, Huss sought treatment in the emergency room because of difficulty breathing
and was diagnosed with cardiomyopathy, pulmonary edema, and congestive heart failure.
In June 1999, Huss and her husband, Rodney, sued Dr. Giddens for malpractice. That
case was subsequently dismissed on jurisdictional grounds. On June 30, 2000, more than
two years after Huss’s heart and lung conditions were diagnosed, the Husses sued Dr.
Gayden and Memphis OB/GYN, alleging that their negligence in treating her and in
prescribing and administering Terbutaline caused her medical conditions and injuries. Dr.
Giddens is not a party to this lawsuit.
In their answer to the complaint, the defendants included as an affirmative defense the
contention that the Husses’ claims were barred by Mississippi’s two-year statute of
limitations. Before trial, a case management order was entered setting a deadline for filing
motions other than motions in limine. Neither party requested an extension of that deadline,
and the defendants did not file a dispositive motion based on limitations before the deadline
expired. A pretrial order listed summaries of the parties’ arguments and contested issues of
law and fact. The defendants’ statute-of-limitations defense was not included as a contested
legal or fact issue, but it was noted on the last substantive page of the order in a section
pertaining to “additional matters to aid in the disposition of [the case].”
The parties had consented to proceed to trial with a magistrate judge presiding, and
a jury returned a verdict awarding $3.5 million in damages to compensate Barbara Huss for
3
her personal injury claim. The defendants then moved for judgment notwithstanding the
verdict, or in the alternative for a new trial, on a number of grounds including limitations.
The motion was denied on all counts in a written opinion. The magistrate judge rejected the
defendants’ limitations defense because it was not filed by the motions deadline in the case
management order and further concluded that “[the] defendants failed to establish the
approximate date on which the statute of limitations began to run” because there was no
proof of the date by which plaintiff knew or should have known [that Terbutaline was
probably the cause of her injury and that her physicians should not have given her the drug].”
Previously, the judge had denied the defendants’ Rule 50(a) motion for directed verdict
based on limitations, suggesting that this motion was denied in part because limitations was
not asserted as an issue of law or fact in the pretrial order. However, in ruling on the
defendants’ post-verdict motions, the judge explicitly stated that the basis for denying the
earlier motion “was not . . . because [the limitations issue] was listed in the wrong place on
the Pretrial Order.”
On appeal, the defendants argue that (1) the Husses claims are barred by the statute
of limitations, (2) there is insufficient evidence to prove that Terbutaline caused Barbara
Huss’s injuries, (3) the magistrate judge improperly excluded a defense expert’s testimony
regarding causation, (4) there were errors in the jury charge, (5) the judge made prejudicial
comments before the jury, and (6) the judge failed to correct a mischaracterization of the
evidence during the plaintiffs’ closing argument. Because we hold that the Husses’ claims
are barred by limitations, we do not address causation, exclusion of the defense expert’s
4
testimony, or any of the other issues raised in this appeal.
II
The magistrate judge concluded that the defendants waived their statute-of-limitations
defense by failing to file a dispositive motion within the time specified in the case
management order for motions other than motions in limine. The defendants were not
required to file a motion for summary judgment as a predicate to moving for a directed
verdict under Rule 50(a) at the close of the evidence. Rule 50(a) authorizes a party to move
for judgment as a matter of law any time before submission of the case to the jury “[i]f
during a trial by jury a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”1
Certainly, the defendants could have raised limitations by a pre-trial dispositive motion
asserting that there is no fact issue concerning when limitations accrued. But a court order
setting a pre-trial “motions” deadline could no more foreclose a party’s right to make a
motion under Rule 50(a) than it could preclude a party from filing a motion for new trial.
To the extent the magistrate judge concluded otherwise, it was in error.
The Husses also assert that the defendants abandoned the limitations defense by
failing to list it as a contested issue of fact or law in the pretrial order. We disagree. The
statute-of-limitations issue was sufficiently identified in the pretrial order as an issue of
continuing concern. By including the defense as an additional matter that would affect
1
FED. R. CIV. P. 50(a).
5
disposition of the case, the defendants indicated an intent to pursue their limitations defense
as a bar to the Husses’ claims.
III
The parties agree that the statute governing limitations in this case is section 15-1-36
of the Mississippi Code, which provides that “no claim in tort may be brought” against a
physician or arising out of the course of medical services “unless it is filed within two (2)
years from the date the alleged act, omission or neglect shall or with reasonable diligence
might have been first known or discovered.”2 The Husses sued the defendants on June 30,
2000. There was no jury question submitted concerning the date the Husses’ cause of action
accrued; therefore, defendants can prevail on their statute of limitations defense only if the
2
The pertinent parts of section 15-1-36 provide:
(1) For any claim accruing on or before June 30, 1998, and except as otherwise
provided in this section, no claim in tort may be brought against a licensed physician,
osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist,
podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the
course of medical, surgical or other professional services unless it is filed within two
(2) years from the date the alleged act, omission or neglect shall or with reasonable
diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise
provided in this section, no claim in tort may be brought against a licensed physician,
osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist,
podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the
course of medical, surgical or other professional services unless it is filed within two
(2) years from the date the alleged act, omission or neglect shall or with reasonable
diligence might have been first known or discovered, and . . . in no event more than
seven (7) years after the alleged act, omission or neglect occurred [subject to some
exceptions not applicable here].
MISS. CODE ANN. § 15-1-36(1), (2).
6
Husses’ claims accrued before June 30, 1998 as a matter of law.
Judgment as a matter of law is appropriate if “there is no legally sufficient evidentiary
basis for a reasonable jury to find for [a] party on [an] issue.”3 We review the denial of
motion for judgment as a matter of law de novo, drawing all reasonable inferences in favor
of the nonmoving party.4 We cannot make credibility determinations or weigh the evidence,
and “‘we must disregard all evidence favorable to the moving party that the jury is not
required to believe.’”5 Because this is a diversity case, we are bound by state law.6
The Mississippi Supreme Court has decided several cases in recent years regarding
limitations. The most analogous decision is Wright v. Quesnel, in which the plaintiff was
treated by an obstetrician throughout her pregnancy.7 During her eighth month, she exhibited
high blood pressure and possible pre-eclampsia. Her obstetrician recommended bed rest.
Three days later, she again sought treatment from this physician and was again ordered to
rest in bed. Another three days passed, and the plaintiff presented with severe pain, at which
time her obstetrician determined that her child had died in utero. The Mississippi Supreme
Court held, as a matter of law, that limitations began to run on the date of the child’s death.
3
FED. R. CIV. P. 50(a).
4
Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 918 (5th
Cir. 2002).
5
Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
6
See Mathis v. Exxon Corp., 302 F.3d 448, 453 (5th Cir. 2002).
7
876 So.2d 362, 367 (Miss. 2004).
7
“[The plaintiff] had enough information at the time of death such that she knew or reasonably
should have known that negligence had occurred.”8 The court explained that the plaintiff had
seen her obstetrician “twice and received no treatment but an order to rest – her symptoms
and discomfort continued, however. When she discovered that her child had died in the
womb, Wright should have known that there was some causal connection between the death
and Dr. Quesnel’s treatment.”9 The case was decided on summary judgment, and pointedly,
the Mississippi court observed that the plaintiff “did not offer any evidence that she could
not have discovered the injury within the applicable statute of limitations.”10
The statute at issue in Wright was MISS. CODE ANN. § 11-46-11 (2002), the
limitations provision in the Mississippi Tort Claims Act, rather than section 15-1-36.
However, the Mississippi Supreme Court has held that section 11-46-11, like section
15-1-36, is subject to the discovery rule and that “‘the operative time [for the commencement
of the limitations period] is when the patient can reasonably be held to have knowledge of
the injury itself, the cause of the injury, and the causative relationship between the injury and
the conduct of the medical practitioner.’”11 Accordingly, there is no meaningful distinction
8
Id.
9
Id.
10
Id.
11
Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1001 (Miss. 2004) (quoting Sarris v. Smith,
782 So.2d 721, 725 (Miss. 2001)).
8
between sections 11-46-11 and 15-1-36, as interpreted by the Mississippi courts.12
In the case before us, the evidence adduced at trial demonstrates that suit was filed
more than “two (2) years from the date the alleged act, omission or neglect shall or with
reasonable diligence might have been first known or discovered.”13 On May 10, 1998, Huss
was diagnosed with the injuries of which she now complains. As of that day, she knew she
had been treated over the course of her pregnancy by the defendants and had experienced
difficulties that resulted in her seeking emergency medical treatment on several occasions.
She also knew the defendants had prescribed Terbutaline, which she had taken continuously
for more than six weeks. All the facts forming the basis of her claim were known as of May
10, 1998. Applying the reasoning of Wright, the plaintiffs “should have known that there
was some causal connection”14 between the treatment Barbara Huss received from the
defendants and her injuries, even if they did not know the precise cause of those injuries.
Although the Mississippi Supreme Court has stated that knowledge of “‘a causal relationship
between the negligent act and the injury or disease complained of is essential because “it is
well-established that prescription does not run against one who has neither actual nor
12
See Powe v. Byrd, 892 So.2d 223, 227 (Miss. 2004) (construing MISS. CODE ANN.
§ 15-1-36 and holding that “[f]or purposes of the discovery rule, the two-year period begins to run
when ‘the patient can reasonably be held to have knowledge of the injury itself, the cause of the
injury, and the causative relationship between the injury and the conduct of the medical practitioner’”
(quoting Sarris, 782 So.2d at 723)).
13
MISS. CODE ANN. § 15-1-36.
14
Wright, 876 So.2d at 367.
9
constructive notice of the facts that would entitle him to bring an action,”’”15 the court has
explained this means “that the ‘focus is on the time that the patient discovers, or should have
discovered by the exercise of reasonable diligence, that he probably has an actionable
injury.’”16 The court has also candidly acknowledged that “[s]everal [of its] recent decisions
further erode the level of knowledge required to vest a cause of action” for purposes of
statutes of limitations.17
In Powe v. Byrd, another recent medical malpractice case from the Mississippi
Supreme Court, the plaintiff received a course of treatment over approximately two years for
gastritis and hemorrhoids.18 He was ultimately diagnosed in March 1998 with cancer in his
colon and lungs and died in August of that year. His survivors contended that limitations on
Powe’s claim against the physician who failed to diagnose the cancer did not commence
under section 15-1-36 until December 1, 2000, when the plaintiffs received an expert’s
opinion that the treating physician’s negligence may have caused Powe’s death. The
Mississippi Supreme Court held, as a matter of law, that section 15-1-36 barred the claim.
The court reasoned, “Cecil [Powe] received treatment for gastritis and hemorrhoids for
approximately two years from the Medical Group Clinic; he eventually discovered in March
15
PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss. 2005) (quoting
Sweeney v. Preston, 642 So.2d 332, 334 (Miss. 1994)).
16
Id. at 51 (quoting Wright, 876 So.2d at 366) (emphasis in original).
17
Id.
18
892 So.2d 223, 225 (Miss. 2004).
10
of 1998 that his problems were far worse than expected and that he had colon cancer.”19
The Mississippi Supreme Court elaborated on its holding in Powe in a subsequent
case, PPG Architectural Finishes, Inc. v. Lowery.20 The court explained, “In Powe, this
Court found that a plaintiff’s receipt of medical treatment for two years demonstrated that
he knew or reasonably should have known about his injuries [and] . . . specifically rejected
his claim that the statute of limitations began running when he received an expert opinion
because [he] had known of his injury as evinced by the two years of prior medical treatment
for the injury.”21 This rationale compels the conclusion that Barbara Huss knew or
reasonably should have known of her injury when she was diagnosed on May 10, 1998 with
cardiomyopathy, congestive heart failure and pulmonary edema after a difficult pregnancy
that included administration of Terbutaline.22
19
Id. at 227-28.
20
909 So.2d 47 (Miss. 2005).
21
Id. at 51. But see Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 206 (Miss. 1999)
(construing MISS. CODE ANN. § 11-46-11(3) and holding that a husband and wife “may have been
aware of [the wife’s] injuries before the one year time limit was up, [but] they could not reasonably
have known that [the hospital] was responsible for those injuries until their medical expert notified
them of the possible negligence”).
22
See Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1001 (Miss. 2004) (holding, as a matter
of law, that at the time of a child’s death, her parents “had enough information such that they knew
or reasonably should have known that some negligent conduct had occurred, even if they did not
know with certainty that the conduct was negligent as a matter of law” because the death certificate
included sepsis as one of the causes of death; the court said, “[I]t should have been apparent to the
plaintiffs that some negligent conduct had occurred” even if they did not know what that conduct was
(emphasis added)); Gentry v. Wallace, 606 So. 2d 1117, 1118, 1119 (Miss. 1992) (observing in a
wrongful death case that a decedent’s cause of action for malpractice would have accrued when she
was diagnosed with breast cancer, which her treating physicians had failed to diagnose in the
preceding six months despite a previous history of breast cancer and complaints of swollen lymph
11
Unlike the plaintiff in Sarris v. Smith,23 Barbara Huss did not need to await receipt
of her medical records to have known of the causal relationship between her treatment by the
defendants and her cardiomyopathy, congestive heart failure and pulmonary edema. In
Sarris, Shelby Johnson had a heart attack and was examined at an emergency room. The
principal treating physician consulted with a cardiologist, who failed to tell either Johnson
or the treating physician that Johnson should seek follow-up care and failed to make any
notation to that effect in the medical charts. Unaware of the need for follow-up, the treating
physician released Johnson from the hospital, and a few days later Johnson suffered a fatal
heart attack at his home. The Mississippi court held that Johnson’s wife “could not
reasonably have known, until she reviewed the medical records, the causal relationship
between Johnson’s death and [the cardiologist’s] failure to inform either him or [his treating
physician] that Johnson needed follow-up treatment.”24 Huss, however, had all the operative
facts by May 10, 1998. She did not need access to her medical charts to discover her
injuries, who treated her, or that Terbutaline was prescribed for her.
The dissent contends that when a physician denies that a patient’s injury was caused
by the physician’s course of treatment or administration of a drug, limitations does not
commence to run unless and until causation is established at trial by a jury’s findings. This
nodes and other disturbing symptoms), overruled on other grounds by Jenkins v. Pensacola Health
Trust, Inc., 933 So.2d 923, 926 (Miss. 2006).
23
782 So.2d 721 (Miss. 2001).
24
Id. at 723-24.
12
would mean that limitations never commences to run with respect to non-negligent
physicians. The Mississippi courts have not construed section 15-1-36 in this manner. They
have said, “[T]he ‘focus is on the time that the patient discovers, or should have discovered
by the exercise of reasonable diligence, that he probably has an actionable injury.’”25
Because the plaintiffs filed suit more than two years after the date the alleged act,
omission or neglect was or with reasonable diligence might have been first known or
discovered, the plaintiffs’ claims are prescribed as a matter of law, and the magistrate judge
erred in denying the defendants’ motion for judgment as a matter of law. We therefore
REVERSE the trial court’s judgment and RENDER judgment that the plaintiffs take nothing.
REVERSED AND RENDERED
25
PPG Architectural Finishes, 909 So.2d at 51 (quoting Wright, 876 So.2d at 366) (emphasis
in original).
13
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
Under the controlling law of Mississippi, “the operative time
[the trigger of limitations] is when the patient can reasonably be
held to have knowledge of the injury itself, the cause of the
injury, and the causative relationship between the injury and the
conduct of the medical practitioner.”1 The majority concludes that
this medical malpractice case should never have gone to trial
because the patient, on learning of her injury, should have
connected her medical condition with a particular drug given over
a course of treatment. In doing so, my colleagues misread the law
and unwittingly sanction a trial stratagem of defendants.
Respectfully, I dissent.
First there is underbrush to be put aside. Nothing supports
any implication that Mississippi law allocates to the judge, and
not the jury, all questions of when a patient should have known of
a causative link between injury and conduct. Nor is there a basis
for concluding that application of the statute always presents only
a question of law. Indeed, the language of the limitations trigger
in the Mississippi statute — “shall or with reasonable diligence
might have first been known or discovered”2 — poses a fact
1
Sarris v. Smith, 782 So.2d 721, 723 (Miss. 2001) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.
1986)).
2
MISS. CODE. ANN. § 15-1-36(2).
14
question. And of course conceded knowledge of a patient that he
has an injury and that he has been treated does not mean that the
ultimate questions of reasonableness and diligence are questions of
law.
There is another wrinkle here. For transparent reasons,
defendants did not seek a jury determination of their limitations
defense, preferring to relinquish all of the defense except a
contention that the case was time-barred as a matter of law. It
follows that the entry of judgement on the verdict is supported by
an implied jury finding of any question of fact necessary to
rejection of the defense of limitations.3
The failure of defendants to seek a jury determination on the
limitations defense was no accident. The fight at trial was
causation. Defendants maintained that the prescribing doctors
could not have known that Terbutaline was a cause of Huss’s
condition because there was no link between the two; the heart
condition was idiopathic. It would have been awkward at best to
also ask the jury to find that Huss, an untrained layperson, should
have looked at Terbutaline as a culprit. Defendants elected to
pitch to the jury their contention of no causation unimpeded by the
conflicting contention that the patient should have known what the
defendant doctors did not. And now, on appeal, defendants contend
that there is insufficient evidence to support the finding of
3
See FED. R. CIV. P. 49.
15
causation but, faced with conflicting medical opinions expressed to
the jury, add the contention that in any event this layperson
should have made the link, as a matter of law. This bold
contention cannot be sustained under the decisions of the Supreme
Court of Mississippi.
The majority relies primarily on Wright v. Quesnel, but that
reliance is misplaced. Essentially, the pregnant patient in Wright
exhibited troubling symptoms on two occasions, the doctor ordered
bed rest both times, and then the child died in utero. Any
reasonable person would connect the child’s death to the lack of
treatment. Here, by contrast, Huss exhibited troubling symptoms of
early contractions, the doctors treated those early contractions
with Terbutaline (and other treatments), and then the early
contractions ceased4 and she gave birth. And then she was
diagnosed with cardiomyopathy. In other words, the treatment here
did what it was supposed to do; the allegation is that it did more,
which the Husses had to figure out. In Wright, the treatment (or
lack thereof) did not do what it was supposed to do. And, of
course, it is always easier to connect a total lack of treatment to
an injury than which of multiple treatments caused an injury. The
patient in Wright needed no further investigation; the Husses did.
The other cases cited by the majority are inapposite for
4
There is some evidence that Terbutaline did not fully stop the early contractions. That is irrelevant, since
the allegation is not that Terbutaline harmed the child or did not cease the contractions.
16
similar reasons. In Powe v. Byrd, the doctor mis-diagnosed colon
cancer as gastritis and hemorrhoids for two years. As in Wright,
any reasonable person would have recognized negligence on the date
injury (cancer) was discovered — after all, the plaintiff knew then
that the original diagnosis was wrong and its resulting treatment
more or less useless.5 In PPG Architectural Finishes, Inc. v.
Lowery, where the plaintiff admitted that she knew “when, how, and
by whom she had been injured on the night of her exposure” to paint
fumes, the court merely held that limitations began to run that
night — after she passed out, went to the emergency room, and the
doctor’s “impression” was injury caused by paint fumes — not when
the plaintiff later received “definitive medical confirmation” that
her resulting brain damages was caused by the fumes.6 The
difference between that case and ours needs no explanation. In
Wayne General Hospital v. Hayes, the plaintiffs had enough
information when their child’s death certificate indicated “sepsis”
and the child had been hospitalized a second time after the
negligence occurred. The court implicitly held that sepsis is
strongly correlated with negligence, leading any diagnosis of
5
892 So.2d at 227-28; see also Gentry v. Wallace, 606 So.2d 1117, 1119 (Miss. 1992) (similar). Moreover,
Powe found the plaintiffs’ limitations argument “disingenuous” because the plaintiff’s first petition alleging negligence,
dismissed for lack of process, was filed before the date plaintiffs were arguing the clock began to run. 892 So.2d at
28.
6
909 So.2d at 48-52.
17
sepsis to cause sufficient suspicion.7 Cardiomyopathy is
different, and a reasonable person would need more than diagnosis
of it to suspect negligence.
I do not see Erie as simply a rule controlling the source of
substantive law where federal jurisdiction rests on diversity of
citizenship. Rather, it is an order of constitutional magnitude
allocating state and federal power, reinforced by strands of
separation of powers, as Professor Mishkin has explained.8 Hence
my disagreement with my colleagues goes beyond principled readings
of decisions by a state supreme court in discharge of our Erie
duty. The legislature of the State of Mississippi, responding to
political forces conflicted over the need of doctors to be free of
frivolous and stale claims and the protection of patients from bad
medicine, enacted the statute at hand. This statute, with its
interpretations by the Supreme Court of Mississippi, are the
sources from which the question before us today must find its
answer. We have a reticulated pattern of cases, some of which find
no fact issues where it is undisputed that a patient knows both
that he is injured and must as a reasonable man then know that the
arrow points to the doctor. Errors in diagnosis — for example, you
have a fatal heart attack after being told it’s only indigestion —
7
868 So.2d at 1005.
8
See generally Paul Mishkin, Some Further Last Words on Erie — the Thread, 87 HARV. L. REV. 1682
(1974).
18
are of this genre. And then there are fact patterns which can
sustain differing results.
But what we do not have from the Mississippi courts is the
bright line rule announced by the majority — limitations is
triggered by knowledge of injury alone, the causative component
dropping away because limitations is triggered “as a matter of
law.” The majority does this because it says that these facts
permit no conclusion but that limitations commenced to run when the
patient learned she had a major heart problem because she should
have then immediately focused on Terbutaline, even though the
treating doctors swear that the drug had nothing to do with her
condition and, significantly, that the cause of her injury was
unknowable. This is a fundamental restatement of the balance
struck by the Mississippi legislature. Whether it is good policy
or needed reform by some abstract measure of social justice I do
not know. But it is not in the constitutive order of things for
three Texas judges, even as well-intentioned and able as my
colleagues, to decide for the State of Mississippi. At the least
we should be most hesitant to trim the role of the jury without
much clearer direction from the state.
Contrary to the majority’s statement, I do not maintain that
limitations here does not “commence to run unless and until
causation is established at trial by a jury’s finding.” Rather, I
maintain that a jury should have decided the fact question
19
presented by the limitations defense in this case — or, rather,
that it was a fact question wisely dropped by defendants given
their defense that causation was unknowable by anyone. In many,
perhaps most, cases, there are plausible causation arguments on
both sides. In such cases, defendants can argue lack of causation
and, simultaneously, argue that plaintiffs, under their own theory
of causation, should have connected injury to negligence at a
certain date, triggering limitations. Here, however, the defense
was that causation was unknowable by anyone, doctor or layman,
because the injury was idiopathic. Perhaps the Husses nonetheless
should have suspected what the doctors say they never suspected.
But to conclude as a matter of law that they should have writes a
powerful new policy for the State of Mississippi — painless tort
reform by decree, not ballot.
20