                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                       July 12, 2006

                         _______________________                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 05-61134
                             Summary Calendar
                         _______________________

                           GRIFF ANGELO HALES,
                                                      Plaintiff-Appellant,

                                   versus

      RESPIRATORY TESTING, Respiratory Testing Services Inc,


                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                            2:04-CV-242
_________________________________________________________________

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

           Griff Hales appeals the district court’s dismissal of his

action on statute of limitations grounds.          We AFFIRM.

                                 BACKGROUND

           Hales brought this negligence action against Respiratory

Testing Services, Inc. (“RTS”) for its alleged failure to inform

Hales of test results indicating a spot on his lungs. Hales alleges

that he hired an attorney to pursue claims relating to his exposure

to asbestos.    That attorney contracted with RTS to provide medical

testing, which RTS performed in August 1999.         On December 17, 1999,

      *
       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should not be published and is not precedent except under the limited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.
Hales was tested by another provider and informed that he had “a

spot on his lung.” By February 2000, the cancer had spread and two-

thirds of Hales’s right lung was removed.         On June 3, 2000, Hales

finally received the results of the test administered by RTS; these

tests indicated the possibility of cancer.        In January 2001, Hales

was discovered to have four cancerous brain tumors.        In a lawsuit

filed December 12, 2003, Hales complains that he suffered damages

by virtue of RTS’s failure to disclose timely his test results; he

would have begun treatment earlier had he known of the cancer.

                               DISCUSSION

           The district court correctly found that the Mississippi

statute of limitations, which governs this diversity case, had

expired.   Mississippi law provides that Hales had three years in

which to file his lawsuit from the time his cause of action accrued.

MISS. CODE ANN. § 15-1-49.    “[T]he cause of action does not accrue

until the plaintiff has discovered, or by reasonable diligence

should have discovered, the injury.”        Id.

           Before the district court, Hales argued that his cause of

action did not accrue until he knew the cancer had spread to his

brain, in January 2001.      He argued that RTS’s delay in telling him

about the cancer caused the spread of that cancer to his brain,

which he first discovered in January 2001.           The district court

rejected this argument, holding that Hales’s cause of action accrued

when he discovered he had lung cancer, at the latest in February



                                    2
2000, or, giving him the benefit of the doubt, when he received the

RTS test results in June 2000.         The district court’s analysis is

correct:   The spread of cancer from one part of the body to another

does not give a plaintiff a later accrual date; the accrual date is

when the plaintiff discovered he had cancer.              See Schiro v. Am.

Tobacco Co., 611 So.2d 962, 965 (Miss. 1992) (claim accrued upon

diagnosis that mass was cancerous).

            These were the only arguments made before the district

court.1    “We will not disturb the district court’s judgment based

upon an argument presented for the first time on appeal.”             Pluet v.

Frasier, 355 F.3d 381, 384-85 (5th Cir. 2004).             Accordingly, the

judgment is AFFIRMED.




      1
        On appeal, Hales argues that he only became aware of the cause of his
injury when he discovered, in September 2003, that it was RTS who allegedly
failed to disclose his test results. RTS avers that all Hales had to do to learn
the identity of RTS as the test provider was ask his attorney, and thus, he was
not reasonably diligent in pursuing the claim.

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