Mendoza v. Murphy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 18, 2008

No. 07-50418 Charles R. Fulbruge III
Clerk

RICK MENDOZA; IRENE MENDOZA

Plaintiffs - Appellants
v.

ALICIA G. MURPHY, M.D.; MARIANO ALLEN, M.D.

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas

Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:
Plaintiffs Rick and Irene Mendoza appeal the district court’s decisions to
retain supplemental jurisdiction over their state law claims against Defendants
Dr. Alicia Murphy and Dr. Mariano Allen and grant summary judgment based
on the Texas statute of limitations, which is not here superseded by the state’s
constitutional open courts doctrine. TEX. REV. CIV. STAT. ANN. art. 4590i,
§ 10.01, recodified at TEX. CIV. PRAC. & REM. CODE ANN. § 74.251. We affirm.
BACKGROUND
Rick Mendoza’s bladder was surgically removed in 2001 after Defendants
diagnosed his bladder cancer as invasive. The Mendozas initially sued the
United States in 2003, asserting that the physicians at the El Paso Veterans
 No. 07-50418

Affairs hospital failed to diagnose and treat his cancer. In 2005, Plaintiffs joined
the Defendants Murphy and Allen to the lawsuit, alleging the diagnosis of
invasive cancer was in error, and their medical malpractice led to unnecessary
removal of his entire bladder. The relevant details are as follows.
From 1996 to 2001, Rick Mendoza was treated for urinary tract problems
at the El Paso Veterans Affairs Medical Center. In November 2001 Mendoza
visited Dr. Jeffrey Taber, a civilian urologist at the Las Palmas Medical Center,
who conducted a biopsy of Mendoza’s bladder. Defendant Murphy, a pathologist,
analyzed the biopsy specimens and issued a report on November 28, 2001,
indicating that the specimens were positive for invasive cancer.1 Dr. Taber
surgically removed Mendoza’s bladder on December 15, 2001. In his
post-operative report, Dr. Taber confirmed the diagnosis of “Muscle invasive
transitional cell carcinoma of the bladder.” But in a separate post-operative
report dated December 15, 2001, pathologist Dr. Arturo Vargas stated that he
found Mendoza’s bladder tissue “negative for definitive invasion.”
In February 2003, Plaintiffs filed a notice of claim against the United
States, alleging negligent failure to diagnose his bladder cancer at the VA
hospital in 2000 and 2001. This action preceded their lawsuit under the Federal
Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671 et. seq. When, during discovery,
Plaintiffs attempted to re-examine the original biopsy tissue slides from 2001,
Las Palmas Medical Center advised it could not locate them. Recuts of the
biopsy specimen were made, which Plaintiffs’ expert examined in February 2005,
and he found no signs of invasive cancer.
Based on the expert’s report, Plaintiffs sought leave from the district court
to file an amended complaint and join Defendants Murphy and Allen on the

1
Although the record is not clear, it appears that Dr. Allen had some sort of supervisory
capacity in reading the biopsy.

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basis of supplemental jurisdiction. In their motion of March 7, 2005, Plaintiffs
represented that:
This court has and can maintain jurisdiction over the proposed new
defendants under 28 U.S.C. § 1367. The alternative for Plaintiffs
would be to initiate a lawsuit in state court, which would
inefficiently create dual track litigation with increased expenses and
a waste of judicial resources.

The district court granted Plaintiffs’ motion on March 8. Plaintiffs filed their
First Amended Complaint with the district court that same day, alleging state
law claims against Murphy and Allen for negligent misdiagnosis. The next day,
Plaintiffs filed a parallel action against Murphy, Allen, and the Las Palmas
Medical Center in Texas state court, asserting many of the same claims that had
just been joined to the federal case.
Both cases proceeded for a year, and in March 2006, Plaintiffs settled their
claims against the United States. Plaintiffs then moved the federal court to
decline to exercise supplemental jurisdiction over their claims against Murphy
and Allen.
The district court denied Plaintiffs’ motion and subsequently granted the
Defendants’ motion for summary judgment, finding Plaintiffs’ state law claims
barred by the statute of limitations. The Mendozas appeal.
DISCUSSION
Two issues are raised on appeal. Plaintiffs complain that the district court
abused its discretion in retaining supplemental jurisdiction and urge,
alternatively, that the Texas “open courts doctrine” preserves their claims from
a time-bar. We address each issue in turn.
I. Supplemental Jurisdiction
Plaintiffs initially suggest that because their First Amended Complaint
never specifically invoked the supplemental jurisdiction provision, 28 U.S.C.
§ 1367, the Complaint was fatally defective and jurisdiction was lacking as to the

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state law claims against Murphy and Allen. This argument is legally and
factually deficient. The argument is also somewhat misleading. Plaintiffs
specifically moved the district court to allow joinder of the Defendants under 28
U.S.C. § 1367. Plaintiffs also affirmed in the Rule 16 Conference Report that
supplemental jurisdiction was proper as to these claims. In any event, it is “well
settled that where a complaint fails to cite the statute conferring jurisdiction, the
omission will not defeat jurisdiction if the facts alleged in the complaint satisfy
the jurisdictional requirements of the statute.” Hildebrand v. Honeywell, Inc.,
622 F.2d 179, 181 (5th Cir. 1980). The question under section 1367(a) is whether
the supplemental claims are so related to the original claims that they form part
of the same case or controversy, or in other words, that they “derive from a
common nucleus of operative fact.” See United Mine Workers of America v.
Gibbs, 383 U.S. 715, 725 (1966). Here, both the federal and state claims on the
face of the pleadings concern the same core factual issue: the proper diagnosis
and treatment of Rick Mendoza’s bladder cancer. The claims are sufficiently
related for purposes of section 1367(a). Plaintiffs adequately stated their case
in favor of supplemental jurisdiction below; we will not conclude on appeal that
it was lacking based solely on a formal omission in the Complaint.
The more pertinent issue is whether the district court abused its discretion
by retaining jurisdiction over the state law claims after the federal claims
against the United States had been dismissed. Parker & Parsley Petrol. Co. v.
Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992). Our review is guided by the
statutory factors set forth in section 1367(c) and considerations of judicial
economy, convenience, fairness, and comity. McClelland v. Gronwaldt, 155 F.3d
507, 519 (5th Cir. 1998), overruled on other grounds by Arana v. Ochsner Health
Plan, 338 F.3d 433 (5th Cir. 2003). These interests are to be considered on a
case-by-case basis, and no single factor is dispositive. Parker, 972 F.2d at 587.

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The statute authorizes a court to decline to exercise supplemental
jurisdiction over a state law claim are if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
§ 1367(c). The second and third factors weigh in favor of declining jurisdiction.
After the United States was dismissed from the lawsuit, there were no claims of
original jurisdiction remaining, and state law claims dominated. These two
factors, however, are not dispositive, and here they are counterbalanced by other
concerns. See Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002)
(affirming the decision to retain supplemental jurisdiction, despite the dismissal
of all federal claims). In Amedisys the fact that the remaining issues were not
complex, were well-known to the court, and were ripe for summary disposition
supported the decision to retain jurisdiction. Id.; see also Batiste v. Island
Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999) (noting that the absence of
difficult state law questions can weigh heavily in favor of retaining jurisdiction).
Similarly, the state law issues in this case were neither novel nor complex.
Plaintiffs posit that the open courts doctrine is a confusing area of Texas law,
but the one case they cite for this proposition does much to clarify the law.2 The
open courts doctrine is sufficiently clear and easily applied to the facts of this
case.

2
See O’Reilly v. Wiseman, 107 S.W.3d 699, 706-07 (Tex. App. — Austin 2003, pet.
denied) (noting the Texas Supreme Court clarified the law on the open courts doctrine in Shah
v. Moss, 67 S.W.3d 836 (Tex. 2002)); see also Boyd v. Kallam, 152 S.W.3d 670, 678-81 (Tex.
App. — Ft. Worth 2004) (further reconciling and consolidating precedent on the open courts
doctrine).

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In addition to the statutory factors, the common-law factors of judicial
economy, convenience, fairness, and comity also favor affirming the district
court’s discretionary decision. By the time the district court ruled on the motion
to decline supplemental jurisdiction, the case against Defendants had been
pending for well over a year, the discovery deadline had passed, and the parties
had fully briefed Defendants’ motion for summary judgment. The trial court had
“substantial familiarity with the merits of the case,” Parker, 972 F.2d at 587, and
it was reasonable to conclude that “further proceedings in the district court
would prevent redundancy and conserve scarce judicial resources.” Batiste, 179
F.3d at 228. Finally, the trial court’s decision was eminently fair. Plaintiffs
complain that by retaining jurisdiction, the district court ran the risk of
duplicating similar litigation in state court. But Plaintiffs themselves created
the duplicate litigation after having expressly stated in their federal court
pleadings a desire to avoid “dual track litigation.”3
The district court, in sum, did not abuse its discretion in retaining
jurisdiction over claims that were fully developed and ripe for disposition on
summary judgment.
II. Open Courts Doctrine
After retaining jurisdiction, the district court held that Plaintiffs’ claims
were barred by the statute of limitations. We review this decision de novo.
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary
judgment is appropriate when the submissions show that “there is no genuine

3
Plaintiffs claim they did not learn that their motion to join the Defendants in federal
court had been granted until after they filed the state court action. The filing stamps on the
respective Complaints (March 8 in federal court; March 9 in state court) cast doubt on this
contention. Even if it were true, Plaintiffs could have avoided dual track litigation by simply
dismissing the state court action once they confirmed joinder in federal court. Rather than
doing so, Plaintiffs maintained both actions for a full year, obtained a favorable ruling on their
expert report in state court, and then sought to dismiss the federal action after settling their
claims against the United States.

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issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Id.; FED R. CIV. P. 56(c).
The Texas Medical Liability and Insurance Improvement Act (“Act”)
provides that a claim for medical negligence must be brought within two years
from (1) the date of the tort; (2) the last date of the relevant course of treatment;
or (3) the last date of the relevant hospitalization. TEX. REV. CIV. STAT. ANN. art
4590i, § 10.01, recodified at TEX. CIV. PRAC. & REM. CODE ANN. § 74.251; Shah
v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). A plaintiff may not choose the
commencement date most favorable to him; if the date of the alleged tort is
ascertainable, the limitations period begins at that time. Shah, 67 S.W.3d at
841. It bears noting that section 10.01 makes no allowance for a “discovery”
rule; the commencement date is not automatically tolled until the plaintiff
“knows or has reason to know” of his injury. Morrison v. Chan, 699 S.W.2d 205,
208 (Tex. 1985) (affirming that the clear intent of the legislature in passing
section 10.01 was to abolish the discovery rule). For Mendoza, the limitations
period began on November 28, 2001, when Defendants allegedly misdiagnosed
invasive bladder cancer. Plaintiffs did not file suit against the Defendants until
March of 2005, well after the limitations period had expired.
Nonetheless, Plaintiffs claim their suit should be allowed to proceed under
the “open courts doctrine.” The Texas Constitution provides that “All courts
shall be open, and every person for an injury done him, in his lands, goods,
person or reputation, shall have remedy by due course of law.” TEXAS CONST.
art. 1, § 13. Texas courts have interpreted this provision as protecting a citizen
from statutory limitations that “abridge his right to sue before he has a
reasonable opportunity to discover the wrong and bring suit.” Neagle v. Nelson,
685 S.W.2d 11, 12 (Tex. 1985). Under some circumstances, the open courts
doctrine may toll commencement of the section 10.01 limitations period.

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To prove an open courts violation, it is the plaintiff’s burden to show that
(1) he has a cognizable common-law claim that section 10.01 restricts; and
(2) the restriction is unreasonable or arbitrary when balanced against the
statute’s purpose and basis. Shah, 67 S.W.3d at 842. Only the second element
is at issue here. Concerning the purpose of section 10.01, it is well-settled that
“the legislature’s actual purpose in enacting statute of limitations provisions
limiting the time for bringing a medical negligence suit is legitimate: to limit
the length of time that medical professionals will be exposed to potential liability
and thereby reduce medical malpractice insurance rates.” Boyd v. Kallam, 152
S.W.3d 670, 677 (Tex. App. — Ft. Worth 2004), pet. dismissed as improvidently
granted, 232 S.W.3d 774 (Tex. 2007). When these concerns are balanced against
a particular plaintiff’s claim, the limitations period from section 10.01 “does not
violate the open courts guarantee if the plaintiff had a reasonable opportunity
to discover the alleged wrong and bring suit before the limitations period
expired.” Shah, 67 S.W.3d at 842. As other courts have explained, a plaintiff
seeking to prove that 10.01 violates the open courts provision in his case must
show that it was “impossible or exceedingly difficult to discover the wrong and
bring suit” within the limitations period.4
Plaintiffs fail to carry this burden. The alleged negligence in this case
occurred on November 28, 2001, the date Rick Mendoza was diagnosed with
invasive bladder cancer. Plaintiffs claim they had no reason to suspect this was
a misdiagnosis until another expert examined recuts of the biopsy tissue in
February 2005 and found no evidence of invasive cancer. Based on a review of

4
O’Reilly, 107 S.W.3d at 706; Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995)
(noting that the Texas Supreme Court has allowed plaintiff a “reasonable time” to file under
the open courts doctrine only in cases involving claims that are “by their nature exceeding
difficult or impossible to discover”); see also Boyd, 152 S.W.3d at 678-79 (noting there is no
substantive difference between the “impossible or exceedingly difficult to discover” standard
and the “no reasonable opportunity to discover” standard).

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the record, we cannot agree. Plaintiffs suspected as early as February 2003,
when they noticed their claim against the United States, that some sort of
malpractice had occurred. When they filed suit against the United States in
August 2003, three months still remained before the state limitations period
expired. This provided Plaintiffs a reasonable opportunity to conduct discovery
and join additional defendants. Critically, the pathology report from 2001 itself
indicated that Mendoza’s cancer may not have been invasive. Though the initial
diagnosis was for invasive cancer, the pathologist’s post-operative analysis on
December 15, 2001, stated the removed tissue was “negative for definitive
invasion by cancer.”
In light of the above, Plaintiffs had a reasonable opportunity to discover
their claims and bring suit against the Defendants within the two-year
limitations period. Accordingly, there was no open courts violation. As
recognized by Texas courts, this rule is more restrictive than the traditional
“discovery” rule. O’Reilly, 107 S.W.3d at 708 (noting that the open courts
provision tolls the section 10.01 limitations period “only if conditions make it
virtually impossible to discover one’s injury within two years”). Plaintiffs fail to
meet this standard, and as a result their claims are time-barred.
CONCLUSION
For the aforementioned reasons, the judgment of the district court is
AFFIRMED.

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