Humphreys v. Roche Biomedical Laboratories, Inc.

• Decision Date: 13 April 1993
• Docket Number: No. 92-2917,92-2917
• Citation: 990 F.2d 1078
• Parties: Sandra HUMPHREYS; Marion Paul Humphreys, Jr., Appellants, v. ROCHE BIOMEDICAL LABORATORIES, INC.; Hoffman-LaRoche, Inc.; Anna Jo Mixon; William D. Crump, M.D., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1078

990 F.2d 1078

25 Fed.R.Serv.3d 1530

Sandra HUMPHREYS; Marion Paul Humphreys, Jr., Appellants, v. ROCHE BIOMEDICAL LABORATORIES, INC.; Hoffman-LaRoche, Inc.;

Anna Jo Mixon; William D. Crump, M.D., Appellees.

No. 92-2917.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 23, 1993.

Decided April 13, 1993.

David Hodges argued, Little Rock, AR, for appellants.

Laura Hensley Smith argued (Sarah J. Heffley on brief), Little Rock, AR, for William Crump.

Bettina Brownstein argued, Little Rock, AR, for Anna Mixon and Roche Biomedical; James M. Moody on brief, Little Rock, AR, for Roche Biomedical.

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, and MORRIS S. ARNOLD, Circuit Judge.

HEANEY, Senior Circuit Judge.

This medical malpractice case comes to us from the district court's order granting summary judgment for the defendants. The district court concluded that the action was barred by the applicable statute of limitations. We affirm.

I

On 20 April 1988, plaintiff Sandra Humphreys had a pap smear taken by a local physician in Lake Village, Arkansas, who sent it for interpretation to defendant Roche Biomedical Laboratories, Inc., in Monroe, Louisiana. On 22 April 1988, defendant Anna Jo Mixon, a cytotechnologist at Roche Biomedical misread the plaintiff's pap smear to be a normal class I, indicating no signs of malignancy. On 27 February 1990, it was discovered that the prior reading was incorrect. A correct reading identified the pap smear to be a class III, indicating early signs of cancer. Roche Biomedical notified plaintiff's physician of the corrected reading.

The plaintiff and her husband filed this lawsuit in the Circuit Court of Chicot County, Arkansas, on 17 December 1991. Their complaint charged the defendants with negligence, strict liability, breach of warranty, and outrage, all arising from the misreading of the pap smear.

After removal to federal district court, defendants Roche Biomedical, Mixon, and Hoffman-LaRoche, Inc., moved for summary judgment, arguing that the action was barred by the relevant statute of limitations. In a cross-motion the plaintiffs moved for more time to complete discovery. The district court denied the discovery request and granted summary judgment on 2 March 1992.

The remaining defendant, Dr. William D. Crump, a pathologist who had worked for Roche Biomedical when plaintiff's pap smear was misread, moved for summary judgment on 3 March 1992, also citing the statute of limitations. In response, on 16 March 1992, the plaintiffs moved to amend their complaint against Crump. On 11 August 1992 the district court denied the motion to amend and granted Crump's motion for summary judgment. This appeal followed.

II

The relevant Arkansas statute requires that medical malpractice actions be filed within two years of the alleged wrongful act: "All actions for medical injury shall be commenced within two (2) years after the cause of action accrues.... The date of accrual of the cause of action shall be the date of the wrongful act complained of and no other time." Ark.Code Ann. § 16-114-203(a), (b) (1987).

There is no dispute that the principal wrongful act occurred when Mixon misread the pap smear on 22 April 1988, and that a cause of action based on that act alone would be time-barred by the statute. The plaintiffs contend their suit is timely, however, because the complaint may be read broadly to allege subsequent discrete acts of negligence, including the failure to discover the original mistake, and the failure to warn patients of a possible misreading. The complaint, in pertinent part, states that "[d]efendants were guilty of negligence in failing to properly identify the pap smear that was submitted and giving the plaintiff an incorrect and inaccurate reading on the pap smear." Complaint, p 8. The district court properly concluded that the complaint asserts only negligence in misreading the pap smear in April 1988, and that the statute of limitations had run before the complaint was filed.

The district court also properly rejected the assertions that this was a continuing tort, accruing freshly until the mistake was discovered, and that the "discovery rule" applied, allowing the statute to run from the time at which the plaintiffs learned of the negligence. With one exception not here relevant, Arkansas courts do not recognize either the discovery rule or a continuing tort theory in the context of medical malpractice cases. Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986).

III

The plaintiffs further contend that the district court abused its discretion by not postponing the summary judgment ruling until completion of discovery. They argue that the denial of their request for a continuance deprived them of the opportunity to obtain the information necessary to support their allegations. Rule 56 of the Federal Rules of Civil Procedure does not require trial courts to allow parties to conduct discovery before entering summary judgment. United States v. Light, 766 F.2d 394, 397 (8th Cir.1985). The party defending a motion for summary judgment before discovery is adequate may request the court to postpone ruling on the motion until the discovery can be conducted. Fed.R.Civ.P. 56(f). This provision, however, " 'is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious.' " Light, at 397 (quoting Willmar Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d 289, 297 (8th Cir.1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1116, 47 L.Ed.2d 320 (1976)).

A party invoking its protections must do so in good faith by affirmatively demonstrating why he cannot respond to a movant's affidavits as otherwise required ... and how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact. Where, as here, a party fails to carry his burden under Rule 56(f), postponement of a ruling on a motion for summary judgment is unjustified.

Willmar Poultry Co., 520 F.2d at 297. The plaintiffs in this case failed to file any affidavit specifying to the court what further discovery might unveil, its relevance to the issues pleaded, or how it might overcome the facially time-barred complaint. We find no abuse of discretion in the district court's grant of summary judgment before plaintiffs had conducted further discovery.

IV

The plaintiffs also cite as error the district court's denial of their motion to amend the complaint. After a responsive pleading has been served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15. Whether to grant leave to amend complaints is left to the sound discretion of the district courts. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). If leave had been granted in this case, the plaintiffs would have amended the complaint to include several additional allegations, including failure to implement proper review and audit procedures, and failure to detect the mistake or warn of the potential for errors after the defendants knew or reasonably should have known of a series of similar errors.

We note initially that the district court already had granted summary judgment for and dismissed the original complaint...