Huss v. Gayden, 04-60962.

• Decision Date: 15 September 2006
• Docket Number: No. 04-60962.,04-60962.
• Citation: 465 F.3d 201
• Parties: Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association PC, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.3d 201

Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association PC, Defendants-Appellants.

No. 04-60962.

United States Court of Appeals, Fifth Circuit.

September 15, 2006.

Ralph E. Chapman, Jane Horne Myers Virden (argued), Chapman, Lewis & Swan, Madison, MS, John H. Daniels, III, Dyer, Dyer, Jones & Daniels, Greenville, MS, for Plaintiffs-Appellees.

Mark Priestly Caraway (argued), Meta S. Copeland, Wise, Carter, Child & Caraway Jackson, MS, for Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Mississippi.

Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.

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 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 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 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 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 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...