Johnson v. U.S., 05-51125.

• Decision Date: 09 August 2006
• Docket Number: No. 05-51125.,05-51125.
• Citation: 460 F.3d 616
• Parties: Nita Haynes JOHNSON, Individually and as Next Friend of Talaya Haynes, a Minor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.3d 616

Nita Haynes JOHNSON, Individually and as Next Friend of Talaya Haynes, a Minor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 05-51125.

United States Court of Appeals, Fifth Circuit.

August 9, 2006.

William Arthur Newman, Morgan & Weisbrod, Dallas, TX, for Johnson.

William George Cole, U.S. Dept. of Justice, Civ. Div., Washington, DC, Winstanly Fiddian Luke, Asst. U.S. Atty., San Antonio, TX, Edward C. Reddington, U.S. Army, Arlington, VA, Richard C. Geisler, Jr., Germer, Bernson, Gertz, Beaman & Brown, Austin, TX, for U.S.

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

Before SMITH, GARZA and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Nita Johnson, individually and as next friend of Talaya Haynes, her minor daughter, filed this Federal Tort Claims Act ("FTCA") action, and the district court granted summary judgment for the United States based on Johnson's failure to file her administrative claim within two years after accrual pursuant to 28 U.S.C. § 2401(b). The court, noting that the summary judgment motion was late according to the pretrial order, nonetheless considered it because the government cited caselaw suggesting that the issue is jurisdictional and thus could be considered at any time. The court further noted that Johnson did not contest whether the statute of limitations is jurisdictional. Johnson appeals, arguing that the court did not have authority to address the late summary judgment motion and incorrectly held that limitations had run. We affirm.

I.

Johnson was seventeen years old and pregnant; she received pre-natal care at Blanchfield Army Community Hospital. During a pre-natal checkup on April 20, 1994, a nonstress test was ordered to monitor the fetal heart rate. The results showed variable decelerations, so Johnson was admitted to the labor and delivery ward.

The following day, by means of a "crash cesarean section" procedure, Johnson gave birth to Talaya. Medical records show that she was floppy, apneic (suffering from an absence of breathing), and dusky at birth and "was without a heart rate or respiratory effort." There were two unsuccessful efforts to resuscitate her by providing oxygen, before a third effort succeeded. Talaya was placed on a ventilator.

In her deposition, Johnson remembered that, at Talaya's four-month checkup, a nurse had been concerned about her daughter and had told her that Talaya was not doing what she was supposed to be doing at four months. Johnson later gave a medical history to Nancy Trent, a pediatric nurse practitioner at a children's clinic on November 17, 1994, when Talaya was about seven months old. From her observations of Talaya and her history taken from Johnson, Trent reported that Talaya was very rigid, especially in the upper body, had exaggerated, developed triceps and biceps to hold her torso up, did not breathe at birth for five minutes, and had neo-natal seizures.

On November 21, 1994, Trent referred Talaya to a pediatrician, Quentin Humberd, who stated that he had seen Talaya because of concerns of developmental motor delay; after an examination, he concluded that Talaya had neurological findings that were beyond the range of normal for her age. Humberd wanted to rule out cerebral palsy and referred Talaya to the Tennessee Early Intervention System ("TEIS"). Humberd recalled that at the November 21 visit he obtained most of the history from Johnson and that he learned that Talaya had had a difficult birth, including asphyxia. He indicated that he was trying to relate what the mother was describing about the problems at birth to the developmental problems he was noticing.

On December 2, TEIS received the referral of Talaya from the clinic; the reason given for referral was possible cerebral palsy. The intake form indicated (in the section containing information provided by Johnson) that Talaya had not been breathing when born and had spent two weeks in the hospital on oxygen and that Johnson had had a C-Section because Talaya's heart rate had dropped.

A developmental assessment of Talaya was conducted in January 1995, after which she was seen by the assessor for an hour each week from March 1995 until June 27, 1996, when Johnson moved to Texas. Some time during this period, the assessor was told by Johnson that "it might have happened at birth" and that she had contemplated suing the Army. In cross-examination, the assessor clarified that Johnson had not said that she had been told that the doctors or nurses had been negligent or that anyone had done anything wrong, but only that Johnson "thought that it might have happened at birth."

On February 3, 1995, at a nine-month examination, Humberd assessed Talaya's condition as consistent with a static encephalopathy (brain dysfunction) "and most likely Cerebral Palsy." Humberd recalled that Johnson had come back in for a conference at which he had explained to her that her daughter's problems were not from viral infection or another degenerative condition but instead were the result of something that had happened at some specific time, an event such as low oxygen or trauma. He then gave her a handout on cerebral palsy and a reading list about support "so that [she] could talk to other families . . . that had cerebral palsy, et cetera."

Humberd explained in his deposition that he suspected an association between Talaya's brain injury and her birth by emergency C-section. He explained that he did not definitively know what had caused Talaya's cerebral palsy, so he did not tell Johnson, during their February 3 discussion, specifically what had caused the brain damage. Nonetheless, he did "entertain a `differential diagnosis' that there was a connection between Talaya's birth trauma and [her] cerebral palsy" and "presented it to Mrs. [] Johnson as `one of the potential causes of why a child can have this kind of problem . . . .'"

On March 13, 1995, Johnson was interviewed by a physical therapist, Gay Lynn Westover. In her notes of that meeting, Westover stated that she was told by Johnson that Talaya had had breathing problems at birth, a decreased heart rate, had been in an incubator, and had experienced developmental delays as early as three months after birth. Eventually, Talaya was given a definitive diagnosis of cerebral palsy, most likely in April 1995, when she was twelve months old.

In the summer of 1996, Johnson and Talaya moved to Texas, where Talaya continued to receive medical care through the Army. On June 6, 1997, Johnson gave birth to another daughter, Tatyana, who has shown no subsequent signs of developmental problems, at Beaumont Army Medical Center in El Paso. Johnson recalled that, after the baby's heart rate dropped the doctors delivered Tatyana by C-section.

Johnson recalled no one telling her that Tatyana had stopped breathing at birth. In her deposition, Johnson testified that in 2000, over two years after her second daughter's birth, she "saw a commercial on TV about cerebral palsy," a "lawyer's commercial . . . saying if your child has cerebral palsy this might be the reason." She testified that she contacted her lawyers "[r]ight after" seeing the commercial. On May 10, 2001, she filed an administrative claim, and she sued on December 27, 2002.

II.

Johnson argues that the district court did not have authority to address the late-filed summary judgment motion, because the FTCA's statute of limitations is not jurisdictional. We agree with the district court's decision, however, because even if that statute of limitations were not jurisdictional (an issue that, as the district court noted, appears to be undecided by this court), the district court had authority to grant summary judgment notwithstanding the fact that the motion was filed later than provided in the pretrial order.

"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." FED.R.CIV.P. 56(b) (emphasis added). Because here the defendant moved for summary judgment before trial, the motion was timely under rule 56(b).¹ Though the caselaw expresses some concerns about the granting of summary judgment motions on the eve of trial, Guillory, 95 F.3d at 1328, this is not an issue in this case, because the motion was filed a month in advance of the date set for trial.²

The violation of the pretrial order does not warrant reversal. Rule 16(f) provides for sanctions that are "just" for violations of pretrial orders. See FED.R.CIV.P. 16(f). Johnson did not argue, in the district court, that the summary judgment motion was late or that sanctions should be imposed under rule 16(f). Therefore, she waived these arguments for the purpose of appeal.³

A closer issue is whether a pretrial order can abridge rights granted to defendants under FED.R.CIV.P. 56(b).⁴ It is uncertain whether the "case management dictates" of rule 16(b) must necessarily prevail over the "at any time" dictates of rule 56(b), and not vice versa. There is no indication that one interest is greater than the other, in either rule 16(b) or the advisory notes. Rule 16(b) could certainly also be interpreted to read in harmony with rule 56(b): Although the district court may impose time limits for filing motions, it cannot restrict the limits that are already expressly provided by the rules.

Also unresolved is whether the "case management" concerns are valid in situations such as this one, in which the motion for summary judgment is filed one month in advance of trial. Surely, a defendant who waits that late to file for summary judgment runs the risk that its motion will be denied because the district court may not have enough time to look at it carefully.

This does not mean, however, that "at any time" in rule 56(b) means anything less than what it says. If the motion...