     Case: 12-20134       Document: 00512489682         Page: 1     Date Filed: 01/06/2014




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

                                                                            FILED
                                                                          January 6, 2014
                                       No. 12-20134                        Lyle W. Cayce
                                                                                Clerk

MARK MILTON,

                                                  Plaintiff–Appellant,
v.

STRYKER CORPORATION; STRYKER SALES CORPORATION,

                                                  Defendants–Appellees.



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1954


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:*
       Mark Milton (Milton) sued Stryker Corporation and Stryker Sales
Corporation (collectively, Stryker), alleging that a Stryker-manufactured “pain
pump” that Milton used following shoulder surgery caused the complete loss of
cartilage in his shoulder. Stryker filed a motion to dismiss, which the district
court converted into a motion for summary judgment. The district court then
granted summary judgment, reasoning that the claims were barred by the
statute of limitations because Milton had failed to exercise reasonable diligence.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-20134

The district court, however, did not permit any discovery. Because the record is
insufficiently developed we cannot determine whether the grant of summary
judgment was proper. Accordingly, we vacate the judgment of the district court
and remand for further proceedings.
                                          I
      Milton alleges in his affidavit that on October 25, 2004, he underwent
surgery on his right shoulder.                Following the operation, a “pain
pump”—manufactured by Stryker—was used to inject anesthetics directly into
the joint of his shoulder. A month later, Milton complained to the physician who
had performed the surgery, Dr. Bryan, of continued pain but was reassured that
such pain was normal Though Milton alleges that he “continued to have
problems with [his] shoulder” for years after the surgery, he did not seek further
medical attention until May 27, 2009, when Dr. Bryan diagnosed him as having
complete loss of articular cartilage in the shoulder, consistent with glenohumeral
chondrolysis. Milton asserts that “he had no idea that it was possible the pain
pump caused increased damage to his shoulder” until this diagnosis in 2009,
when Dr. Bryan told him that the condition was linked to use of the pain pump.
      On May 23, 2011, almost two years after the diagnosis, Milton sued
Stryker under various theories, alleging that the pain pump caused his
condition. He claimed that the injury began immediately following the surgery.
Milton later filed an amended complaint, in which he limited his causes of action
to negligence and product liability claims.
      Milton’s initial complaint asserted the applicability of the discovery rule.
He argued that “[d]espite the exercise of reasonable care and diligence, [he] did
not discover that his injuries may have been caused by [Stryker’s] conduct until
a date less than two years from the filing of the [initial] [c]omplaint in this case.”
Stryker countered that the discovery rule did not apply and moved to dismiss
Milton’s case for having been filed outside the statute of limitations. The district

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                                       No. 12-20134

court sua sponte converted this motion into one for summary judgment, and both
parties were given an opportunity to supplement the record with additional
information.       Milton argued generally that summary judgment would be
premature for lack of discovery. He later filed a Motion for Leave to File
Amended Exhibits and, in the alternative, a Rule 56(f) Motion for Continuance,
explicitly seeking more time to obtain additional evidence. The district court did
not permit discovery and granted Stryker’s motion for summary judgment.
      The district court held that “[the discovery rule did] not apply to the
discovery of the cause of the injury” and that Milton’s “pain was his notice of an
injury” that should have prompted reasonable investigation. The district court
stated that “chondrolysis occurs within months after surgery” and that Milton
“would have discovered the cause of his injury promptly after the surgery” had
he reasonably investigated the source of his continuing pain. The district court
held that Milton’s failure to investigate his injury resulted in the statute of
limitations barring his claims. This appeal followed.
                                              II
      We review a district court’s grant of summary judgment de novo.1
Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”2


                                             III
      This is a diversity case in which Texas substantive law governs Milton’s
claims. In Texas, a two-year statute of limitations applies to personal injury
actions.3 Texas law also provides that a cause of action accrues when the legal


      1
          Jones v. Comm’r, 338 F.3d 463, 466 (5th Cir. 2003).
      2
          FED. R. CIV. P. 56(a).
      3
          TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2011).

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                                          No. 12-20134

wrong is completed, “even if the party is unaware of the wrong.”4                          More
specifically, “[n]egligence claims normally accrue when the duty of ordinary care
is breached, and strict liability claims generally accrue on the date of the
injury.”5 Accordingly, because Milton filed suit six-and-a-half years after his use
of the pain pump, his claims are barred unless the discovery rule applies.
       The discovery rule “defers accrual of a cause of action until the plaintiff
knew or, exercising reasonable diligence, should have known of the facts giving
rise to the cause of action.”6 Whether the discovery rule applies in a particular
case is determined categorically; not on a case-by-case basis.7 The discovery rule
is “a very limited exception to statutes of limitations” and only applies when the
nature of the injury is both “inherently undiscoverable” and “objectively
verifiable.”8 The parties in the present case do not dispute that chondrolysis is
an objectively verifiable condition, so we address only whether Milton’s injury
was inherently undiscoverable.
       Milton argues that injuries resulting from surgical implants are inherently
undiscoverable under this court’s unpublished decision in Brandau v.
Howmedica Osteonics Corp.9 Stryker counters that Milton’s pain pump is not a
“surgically implanted device” within the scope of Brandau. We are, however,



       4
           Porterfield v. Ethicon, Inc., 183 F.3d 464, 467 (5th Cir. 1999).
       5
        Haussecker v. Childs, 935 S.W.2d 930, 934 (Tex. App.—El Paso 1996), aff’d, 974
S.W.2d 31 (Tex. 1998).
       6
           Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
       7
        See, e.g., id. at 457 (holding that the discovery rule categorically does not apply to
misappropriation-of-trade-secrets claims because “in most cases, trade secret misappropriation
generally is capable of detection within the time allotted.”).
       8
       Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001) (internal quotation
marks omitted).
       9
           439 F. App’x 317, 322 (5th Cir. 2011) (per curiam).

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                                     No. 12-20134

unable to determine on the basis of the record whether Milton’s injury can be
classified as a surgical-implant case. We do not know what, if any, device
remained inside Milton’s shoulder following surgery, and if it remained, how
long it remained.
      Milton argues that summary judgment was improper because he raised
genuine issues of material fact concerning his due diligence. First, he asserts
that he acted reasonably in light of being told by his physician that postsurgical
pain was normal. He also argues that waiting for years before seeking a
diagnosis was reasonable because the onset of his chondrolysis was delayed.
While the district court held that Milton’s pain would have prompted a
reasonably diligent person to investigate the cause of the pain earlier, the record
is inconclusive. It is not clear when damage to the shoulder joint could have
been detected had Milton investigated the cause of his pain. Accordingly, we
cannot determine, on the basis of the present record, whether Milton exercised
reasonable diligence in waiting four-and-a-half years before seeking a diagnosis.
Milton has the burden of proof on this issue, and he must present evidence that
chondrolysis is the type of condition that is inherently undiscoverable during the
two-year limitations period and that he could not, exercising reasonable
diligence, have discovered that he had chondrolysis earlier than two years before
he filed suit.
                                 *        *         *
      For the foregoing reasons, we VACATE the district court’s order granting
summary judgment and REMAND for further proceedings consistent with this
opinion.




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