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

                                                                    FILED
                                                                November 14, 2007

                                  No. 04-60962                Charles R. Fulbruge III
                                                                      Clerk

BARBARA HUSS; RODNEY HUSS,

                                            Plaintiffs-Appellees,
v.

JOHN OVERTON GAYDEN, M.D.;
MEMPHIS OBSTETRICS AND
GYNECOLOGICAL ASSOCIATION PC,

                                            Defendants-Appellants.



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



Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      On its own motion, the United States Court of Appeals for the Fifth Circuit
invokes Rule 20 of the Mississippi Rules of Appellate Procedure to certify
questions that will be determinative of all or part of this case. A majority of the
panel has determined that there are no clear controlling precedents in the
decisions of the Mississippi Supreme Court.


TO THE HONORABLE SUPREME COURT OF MISSISSIPPI AND THE
HONORABLE JUSTICES THEREOF:
                                       No. 04-60962

      The style of the cause is Barbara Huss; Rodney Huss v. John Overton
Gayden, M.D.; Memphis Obstetrics and Gynecological Association, PC, pending
in the United States Court of Appeals for the Fifth Circuit as cause number 04-
60962 on appeal from the United States District Court for the Northern District
of Mississippi at Oxford.
                                               I
      A divided panel of this court issued an opinion1 concluding that the
medical malpractice claims of Barbara and Rodney Huss were barred, as a
matter of law, by the applicable Mississippi two-year statute of limitations,
section 15-1-36 of the Mississippi Code.2 The Husses requested rehearing en
banc, a poll was taken, and a majority of the judges in active service and not
disqualified did not vote in favor of granting rehearing en banc.3 That motion
was accordingly denied. However, this panel of the Fifth Circuit Court of


      1
          Huss v. Gayden, 465 F.3d 201 (5th Cir. 2006).
      2
          MISS. CODE ANN. § 15-1-36(1), (2). The pertinent parts of section 15-1-36 provide:

              (1) For any claim accruing on or before June 30, 1998, and except as
      otherwise provided in this section, no claim in tort may be brought against a
      licensed physician, osteopath, dentist, hospital, institution for the aged or
      infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or
      wrongful death arising out of the course of medical, surgical or other
      professional 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) For any claim accruing on or after July 1, 1998, and except as
      otherwise provided in this section, no claim in tort may be brought against a
      licensed physician, osteopath, dentist, hospital, institution for the aged or
      infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or
      wrongful death arising out of the course of medical, surgical or other
      professional 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, and ... in no event more than seven (7) years
      after the alleged act, omission or neglect occurred [subject to some exceptions
      not applicable here].
      3
          JUDGE BARKSDALE did not participate.

                                              2
                                         No. 04-60962

Appeals granted rehearing before the panel. The Mississippi Supreme Court
subsequently issued its opinion in Sutherland v. Ritter,4 and now, a majority of
this panel, sua sponte, respectfully requests that the Mississippi Supreme Court
accept the following certified question:
      When the alleged negligence is (1) administration of a drug by a
      physician, or (2) failure to disclose what a reasonable practitioner
      would have disclosed about the risks of a drug, and experts disagree
      as to whether the drug caused the plaintiff’s injuries, is the date
      that the alleged act, omission or neglect might, with reasonable
      diligence, have been first known or discovered by the plaintiff the
      date her condition or illness is diagnosed by non-defendant
      physicians or experts, or the date the pertinent facts are available
      in medical records, or is limitations tolled until one in a series of
      physicians or other experts the plaintiff consults first tells her that
      the drug caused her condition or illness?

                                              II
      This is a medical malpractice suit against a physician and a professional
corporation of physicians alleging negligence in administering the drug
Terbutaline to Barbara Huss during her pregnancy and breach of a duty to
disclose the risks of administering Terbutaline.           The manufacturer of
Terbutaline was not sued.
      The specific allegations of negligence and breach of the standard of care
at trial were administering Terbutaline as a tocolytic (an agent to slow or halt
labor contractions), the prescription of a tocolytic without physical examination
by a physician, the prescription of any tocolytic when Huss was not in preterm
labor, and the continued prescription of Terbutaline for more than four weeks
when there was no evidence that Huss was in preterm labor. The plaintiffs also
contended that Huss would not have consented to treatment with Terbutaline
had she been informed of risks. The alleged failure to monitor Huss closely



      4
          959 So.2d 1004 (Miss. 2007).

                                              3
                                  No. 04-60962

when her blood pressure began to rise was cited as a breach of the standard of
care, as well.
      The facts giving rise to the Husses’ suit, which was filed June 30, 2000, are
that Barbara Huss became the patient of Dr. Andrea Giddens, a member of
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 had a high-risk pregnancy and
directed her to cease working for the remainder of her term.
      On March 8, 1998, Huss was feeling increased cramping and pressure and
sought treatment from Memphis OB/GYN. Her contractions were five to ten
minutes apart, and she thought she was in labor. Memphis OB/GYN’s on-call
physician, Dr. John Albritton, attempted to stop the contractions and avoid
premature childbirth. He did not personally see Huss, but communicated by
telephone with a nurse, first ordering intravenous hydration and the drug
Stadol. When Huss’s contractions continued, Dr. Albritton ordered injections of
Terbutaline, and the contractions ceased.
      The next day, March 9, 1998, a third Memphis OB/GYN physician, Dr.
John Gayden, treated Huss and also administered Terbutaline. The following
day, Huss was examined by Dr. Giddens, her principal attending physician at
Memphis OB/GYN. Dr. Giddens prescribed oral Terbutaline for Huss, which
was to be taken daily for several weeks. From March 8, 1998 until her child was
delivered in May, Huss experienced various symptoms that caused her to seek
emergency treatment on numerous occasions. Although hotly disputed by the
defendants at trial, Huss, members of her family, and an acquaintance testified


                                        4
                                  No. 04-60962

that she experienced severe shortness of breath well before the birth of her child.
Huss testified that for two and one-half to three months before delivery, she had
severe shortness of breath. On March 20, she was placed on oxygen by an
emergency team that transported her to a hospital, and Huss testified that in
the weeks before giving birth to her child, her shortness of breath worsened to
the point that she was “gasping for breath every other word” and slept sitting up.
Huss continued to see Dr. Giddens, and as late as April 21, 1998, Huss was
taking Terbutaline and had not been instructed to stop. Huss’s medical records
reflect the dates and dosages of Terbutaline administered by the defendants.
      By May 5, 1998, Huss had experienced high blood pressure and swelling
in her legs, and on that date, her physical condition was such that an attempt
to induce delivery was made but was unsuccessful. The next day, May 6, 1998,
a Caesarean section was performed, and Huss delivered a healthy daughter.
Huss was discharged from the hospital May 9, 1998. Her various medical
records through that date detailed the administration of Terbutaline and her
extensive symptoms and medical history from February 1998, through this
discharge, with the exception of her complaints of severe shortness of breath.
      After returning home the day of her discharge, Huss continued to
experience shortness of breath. She took one of the Terbutaline pills she had
“left over” from her prescription because she understood that it was given to
asthma patients, and she was concerned about her shortness of breath. At some
point during the evening, when she leaned back, she could not breathe. She was
taken to the emergency room of Methodist South, a facility that is not a
defendant and is not affiliated with any defendant.
      It was the following day, May 10, 1998, that Huss was first diagnosed, by
three physicians, with cardiomyopathy, pulmonary edema, and congestive heart
failure. On that day, an ER physician, who is not a defendant in this case, and
Dr. Albritton, who was a member of Memphis OB/GYN, saw her at Methodist


                                        5
                                  No. 04-60962

South and each diagnosed Huss’s conditions. Dr. Albritton requested that Huss
be transferred to Methodist Hospital in Germantown (also not a defendant) and
that Dr. McDonald, a cardiologist, consult with her, which he did. That same
day, May 10, 1998, Dr. McDonald diagnosed Huss as having cardiomyopathy and
congestive heart failure. Her medical records from these admissions reflect her
severe shortness of breath and her statement that she had been complaining of
shortness of breath for the last three months. Neither the ER physician nor Dr.
McDonald were sued by the Husses, and neither physician was affiliated with
any of the defendants in this suit. Accordingly, on May 10, 1998, Huss was
diagnosed with the conditions of which she now complains by two different non-
defendant physicians at a non-defendant medical facility.
      Huss continued to see Dr. McDonald as her treating cardiologist through
the fall of 1998. In October of that year, he released her to return to light work.
Huss testified that she felt worse after this and that her grandparents referred
her to another cardiologist, Dr. Murray, with whom she consulted in November
1998. He concurred in the diagnosis of cardiomyopathy and continued to treat
Huss through the time of trial. There is no indication that Huss asked any of the
physicians who treated her on and after May 10, 1998, if the course of treatment
by the defendants or the administration of Terbutaline had been substandard
or negligent.
      In June 1999, Huss and her husband, Rodney Huss, sued Dr. Giddens for
medical malpractice.     Dr. Giddens was Barbara Huss’s primary treating
physician at Memphis OB/GYN until the delivery of her child and Huss’s
discharge from the hospital following that delivery in May 1998. The suit
against Giddens was dismissed on jurisdictional grounds.
      Huss testified that it was not until “shortly” or “less than a year” before
the present suit was filed on June 30, 2000, that she became aware that her
medical records had been reviewed by experts and that those experts had


                                        6
                                 No. 04-60962

concluded that the administration of Terbutaline and the course of treatment by
the defendants constituted negligence and caused or contributed to her
cardiomyopathy, pulmonary edema, and congestive heart failure. She did not
explain why or how she obtained these expert opinions or why she did not or
could not have obtained them earlier.
      The jury heard conflicting evidence regarding the standard of care and
whether it was breached. The plaintiffs presented evidence that although
Terbutaline is used “off label” by obstetricians to slow or halt contractions, it
should not be used when the cervix has not dilated and there is no preterm
labor, and that it should not have been administered for four weeks. Plaintiffs’
primary   causation    expert   testified that   most   idiopathic   peripartum
cardiomyopathies occur after delivery, although some will occur up to about a
month prior to delivery. He opined that if Huss had experienced shortness of
breath out of proportion to what a physician would expect in a late-term
pregnancy “beginning a couple of months before [delivery],” such symptoms
“moves it less and less from just the idiopathic peripartum cardiomyopathy” and
led him to believe Terbutaline caused or contributed to Huss’s heart and lung
conditions. It was significant to him that the medical records from Huss’s
readmission in May 1998 reflected her statements that she had suffered from
severe shortness of breath for about two months before the birth of her daughter.
A defense expert testified that he used Terbutaline for his obstetrical patients,
and that this was a common and accepted practice among obstetricians in cases
like Huss’s. Whether Terbutaline can and did cause Huss’s cardiomyopathy was
disputed at trial.    The jury was instructed on theories of negligence in
administering Terbutaline and lack of informed consent. The jury rendered a
general verdict finding for Barbara Huss, awarding her $3,500,000, and finding
for Rodney Huss, but awarding him no damages. The district court entered
judgment on that verdict.


                                        7
                                       No. 04-60962

      The defendants appealed, contending that (1) the Husses’ claims are
barred by the statute of limitations, (2) the evidence was insufficient to prove
that Terbutaline caused Barbara Huss’s injuries, or alternatively the great
weight of the evidence was that the drug did not cause her cardiomyopothy, (3)
the presiding 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.
      Resolution of the statute of limitations issue was potentially dispositive.
Accordingly, this Fifth Circuit panel addressed that issue, and a majority of the
panel has held that the Husses’ claims are barred by limitations and that the
defendants are entitled to rendition of judgment in their favor.5         Judge
Higginbotham dissented, concluding that limitations did not bar the claims.6 As
noted above, and as will be considered in more detail below, we are certifying an
issue regarding limitations for resolution by the Mississippi Supreme Court in
light of the uncertainty as to Mississippi law.
                                             III
      A majority of the panel has determined that the limitations issue was not
waived and is properly before the Fifth Circuit as a procedural matter.7 We
adhere to that determination and seek guidance from the Mississippi Supreme
Court on the substantive law of Mississippi. However, an observation regarding
the dissent’s suggestion that the defendants did not present a statute of
limitations defense at trial is in order.




      5
          See Huss v. Gayden, 465 F.3d 201, 208-09 (5th Cir. 2006).
      6
          Id. at 209-11 (HIGGINBOTHAM, J., dissenting).
      7
          See id. at 204-05.

                                              8
                                       No. 04-60962

      While it is correct that the defendants did not request that the limitations
issue be submitted to the jury, the defendants raised limitations as an
affirmative defense in their pleadings, it was listed in the pre-trial order as an
issue, the defendants moved for a directed verdict at the close of the Husses’
evidence contending that the claims were barred by limitations as a matter of
law, and renewed a motion for a directed verdict on that basis at the close of all
the evidence. The defendants have maintained on appeal that limitations bars
the Husses’ claims as a matter of law. They were not required to submit a jury
issue to preserve this argument on appeal, and the Fifth Circuit is confronted
with a potentially dispositive issue. We seek the guidance of the Mississippi
Supreme Court in resolving the merits of that substantive legal issue because
we respectfully suggest that the Mississippi Supreme Court’s precedent is not
clearly controlling. The Mississippi court may conclude that under Mississippi
law, limitations has been established as a matter of law, or it may conclude that
a fact question exists. A majority of the panel is unwilling to hazard an Erie8
guess when it appears to us that there is no clearly controlling precedent and a
procedure to certify this potentially dispositive issue to the Mississippi Court
exists.
      The dissent concludes that the defendants “argued causation, that not
even the defendant doctors could have known whether Terbutaline caused, or
could have caused, Huss’s condition”9 and that the defendants’ position that
Terbutaline did not cause Huss’s condition “entailed the implicit assertion that
if the physicians could not have known of any nexus, then Huss, a lay person,
certainly could not have known either.”10 The panel majority does not agree that


      8
          Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
      9
          Infra 16.
      10
           Infra 27.

                                              9
                                          No. 04-60962

these statements fully capture the evidence and arguments presented at trial.
Nevertheless, the dissent’s reasoning highlights the need for guidance regarding
Mississippi law.       The dissent’s view suggests that under Mississippi law,
limitations commences to run at a later date in cases in which there was no
negligence or no causation. If, in fact, a physician’s course of treatment was not
negligent or did not cause a patient’s condition or illness, the dissent suggests
that a patient or claimant could not or should not have known that the course
of treatment was negligent.           Similarly, defendants who vigorously defend
medical malpractice claims would seem to be creating a fact question on
limitations, as we understand the dissent’s position.
      The panel majority has not embraced the dissent’s view because it does not
seem to give full effect to the statutory directive that suits must be 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.”11 As discussed
below, the panel majority concluded that one who suffers an injury that is not
latent is put on notice by that injury that there is a two year period in which to
determine if there is a basis for alleging negligence when the course of treatment
is known or readily accessible to the claimant and there has been no fraud or
concealment by the treating physician on which the claimant reasonably relied.
However, it is not clear that the panel’s understanding of Mississippi law is
correct.
      With great respect, we find some tension exists among statements in
Sutherland v. Ritter12 and prior decisions cited therein.         The decision in
Sutherland states, in what appears to be dicta:
      For instance, a patient who undergoes a medical procedure may
      develop serious complications which are clearly known. However,

      11
           MISS. CODE ANN. § 15-1-36(1), (2) (emphasis added).
      12
           959 So.2d 1004 (Miss. 2007).

                                              10
                                         No. 04-60962

      if the patient has no reason to know that the doctor’s negligence in
      performing the procedure caused the complications, the discovery
      rule will apply, even though the injury itself is not latent at all.13
      The decision in Wright v. Quesnel,14 cited in Sutherland,15 held that when
a plaintiff discovered that her child had died in utero, she should have known
there was a causal connection between the treatment she received during her
pregnancy (orders to rest in bed on two occasions and her continued discomfort)
and the death of her child. The Wright decision said, “When she discovered that
her child had died in the womb, Wright should have known that there was some
causal connection between the death and Dr. Quesnel’s treatment.”16 We note
that death within the womb can be due to natural causes or causes other than
a treating physician’s negligence, and we have difficulty reconciling the holding
in Wright with the statement quoted above from Sutherland.
      A majority of the Fifth Circuit panel has previously concluded that the
Mississippi Supreme Court’s decision in Wright was the most analogous to the
Husses’ case and governed their claims.17 But the precedential effect of Wright
is no longer clear in light of Sutherland.
      The Sutherland decision does not discuss Powe v. Byrd, in which Powe’s
survivors contended that limitations did not commence to run until they received
an expert’s opinion that a treating physician’s negligence may have caused his
death.18 The Mississippi Supreme Court appears to have held that limitations



      13
           Id. at 1009.
      14
           876 So.2d 362 (Miss. 2004).
      15
           959 So.2d at 1009.
      16
           876 So.2d at 367.
      17
           See Huss, 465 F.3d at 206.
      18
           892 So.2d 223, 227-28 (Miss. 2004).

                                             11
                                        No. 04-60962

commenced to run when Powe was diagnosed with colon and lung cancer.19 The
court’s decision in PPG Architectural Finishes, Inc. v. Lowery,20 cited in
Sutherland,21 characterized the holding in Powe as follows: “In Powe, this Court
found that a plaintiff's receipt of medical treatment for two years demonstrated
that he knew or reasonably should have known about his injuries [and] . . .
specifically rejected his claim that the statute of limitations began running when
he received an expert opinion because Powe had known of his injury as evinced
by the two years of prior medical treatment for the injury.”22 We are unclear as
to whether Powe and the court’s characterization of its import in PPG remain
precedential.
      The majority’s opinion in Sutherland does not cite or discuss Barnes v.
Singing River Hospital Systems,23 in which the court construed section 11-46-
11(3).24 In Barnes, Lisa Barnes was transferred from the defendant hospital,
Singing River, on September 23, 1995, after she was diagnosed with numerous
serious conditions including sepsis.25 Both of her legs, right hand, and most of
her left hand were subsequently amputated at another, non-defendant hospital
sometime prior to January 9, 1996.26 Barnes’s attorney received her medical
records from Singing River in mid-February 1996, and he informed Singing



      19
           Id.
      20
           909 So.2d 47 (Miss. 2005).
      21
           959 So.2d 1004, 1009 (Miss. 2007).
      22
           909 So.2d at 51.
      23
           733 So.2d 199, 202 (Miss. 1999).
      24
           MISS. CODE ANN. § 11-46-11(3).
      25
           Barnes, 733 So.2d at 200.
      26
           Id.

                                                12
                                         No. 04-60962

River on May 8, 1996 that he believed it was responsible for Barnes’ injuries.27
The court held that limitations commenced to run on May 8, 1996, reasoning:
      While the Barneses may have been aware of Lisa’s injuries before
      the one year time limit was up, they could not reasonably have
      known that Singing River was responsible for those injuries until
      their medical expert notified them of the possible negligence on May
      8, 1996. We find that the statute of limitations did not begin to run
      until that date. As a result, the Barneses’ complaint, filed on March
      5, 1997, was timely filed within the one-year statute of limitations.28
      The Sutherland decision does cite Wayne General Hospital v. Hayes, in
which the court held, as a matter of law, that at the time of a child’s death, her
parents “had enough information such that they knew or reasonably should have
known that some negligent conduct had occurred, even if they did not know with
certainty that the conduct was negligent as a matter of law” because the death
certificate included sepsis as one of the causes of death.29 The court explained
in Wayne, “[i]t should have been apparent to the plaintiffs that some negligent
conduct had occurred” even if they did not know what that conduct was.30
      However, in Neglen v. Breazeale,31 the court indicated that a plaintiff may
rely on a treating physician’s expertise and guidance, and therefore, limitations
was tolled for the more than two years it took the plaintiff to request medical
records:
      A layperson undergoing a surgical procedure trusts in and relies on
      the instructions, professional expertise and guidance of his or her
      physician. Dr. Neglen and/or Dr. Ragu told Lillian that the
      complications arising from James’ surgery were ordinary risks that


      27
           Id.
      28
           Id. at 206.
      29
           868 So.2d 997, 1001 (Miss. 2004).
      30
           Id.
      31
           945 So.2d 988 (Miss. 2006).

                                               13
                                  No. 04-60962

      accompany any surgery. This statement raises a question of fact as
      to when the alleged negligence could have been discovered because,
      in fact, the two doctors were required to inflate artificially James’
      blood vessels to insert the graft. Also, a question of fact exists as to
      whether the doctors should have abandoned the procedure when
      they determined that James’ blood vessels were brittle. This
      information was not given to Lillian. Under these circumstances,
      we cannot conclude as a matter of law that Lillian did not act
      diligently by trusting the doctors’ opinions and waiting over two
      years before requesting James’ medical records.32

      We have difficulty reconciling these and other Mississippi court decisions,
notwithstanding statements contained in Sutherland. In the present case, the
Husses contend that the defendants breached standards of care in initially
administering or in continuing to administer Terbutaline, and in failing to
inform Barbara Huss of risks associated with Terbutaline. Barbara Huss was
last treated by a defendant on May 10, 1998, and on that date, she was
diagnosed by physicians unaffiliated with any defendant as having conditions
and illnesses she contends were caused by Terbutaline. Her medical records
reflected the course of her treatment and her symptoms. We are unclear which
of the Mississippi Supreme Court decisions control a case such as this.
      In certifying the limitations question, and in our discussion of that
question, we disclaim any intention or desire that the Supreme Court of
Mississippi confine its reply to the precise form or scope of the questions
certified. The record of this case, together with copies of the parties' briefs, is
transmitted herewith.




      32
           Id. at 991.

                                        14
                                       No. 04-60962

PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
      In asking the Mississippi Supreme Court to answer how the discovery rule
under Miss. Code. Ann. § 15-1-36 applies to the facts of this case, the majority
states that there is confusion as to “which of the Mississippi Supreme Court
decisions control a case such as this.”1 I agree that something is amiss, but it is
not in the statute we have been asked to apply or in the decisions of the
Mississippi Supreme Court.
      The history of the statute of limitations defense defendants advance before
this court is important. “The defendants’ statute-of-limitations defense was not
included as a contested legal or fact issue [in the pretrial order],” it appeared in
the order only under the heading “additional matters to aid in the disposition of
[the case].”2 The defendants requested no jury instruction regarding limitations
and did not argue before the jury that the Husses had sufficient knowledge to
trigger the running the statute of limitations; rather, they argued causation,
that not even the defendant doctors could have known whether Terbutaline
caused, or could have caused, Huss’s condition – an idiopathic phenomenon. As
the magistrate judge noted in rejecting defendants’ post-judgment motion, which
raised the statute of limitations defense, “‘[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].’”3 Having chosen not to pursue the statute
of limitations at trial and, therefore, having failed to develop evidence on the
defense, defendants make the tendentious request that this court conclude as a

      1
         To be clear, the decision to certify the question was made months before the
Mississippi Supreme Court decided Sutherland v. Ritter, 959 So.2d 1004 (Miss. 2007).
      2
          Huss v. Gayden, 465 F.3d 201, 204 (5th Cir. 2006).
      3
          Id.

                                             15
                                       No. 04-60962

matter of law that the defense, which is by its very nature a fact driven inquiry,
bars Huss’s claim. I respectfully dissent.
                                              I
      As an initial matter, I note that certification is simply not appropriate for
two reasons. Mississippi Rule of Appellate Procedure 20(a) explains that
certification is available when “it shall appear . . . to any United States Court of
Appeals that there may be involved in any proceeding before it questions or
propositions of law of this state which are determinative of all or part of that
cause and there are no clear controlling precedents in the decisions of the
Mississippi Supreme Court . . . .”
      First, Rule 20 suggests that it is appropriately invoked when Mississippi
law is unclear, and not when a United States Court of Appeals simply wishes to
have the Mississippi Supreme Court apply the law to a set of facts for it. As the
Mississippi Supreme Court explained, “Rule 20(a) is thus subject to the
discretion of the Court, and, although this Court generally strives to limit our
inquiry to issues of law, we have clearly done otherwise in the past.”4
      Indeed, I find this situation parallel to that in Boardman v. United
Services Automobile Association, where the Mississippi Supreme Court chided
this court for certifying questions that the court considered to be “in the nature
of law application questions”: “Though subscribing to no theory of mechanical
jurisprudence, we would think it ordinarily within the competence of a federal
judge, given stipulated facts and eight decisions of this Court declaring and
refining the applicable legal principles, to decide the case substantially the same,
so far as legal rules determine the outcome of a litigation, as would the
appropriate state court.”5 As I understand this case, the issue before this court


      4
          McIntyre v. Farrel Corp., 680 So.2d 858, 860 (Miss. 1996) (emphasis added).
      5
          470 So.2d 1024, 1030-31 (Miss. 1985).

                                             16
                                      No. 04-60962

is applying law to facts, and I would not shift that task to the Mississippi
Supreme Court.
      Second, Rule 20(a) states that certification is not available unless “there
are no controlling precedents in the decisions of the Mississippi Supreme Court.”
There is controlling precedent here, and as discussed below, I find no ambiguity
in the case law that warrants certification.
                                           II
      We are called upon to “apply[] the unambiguous language of Miss. Code.
Ann. § 15-1-36(2),”6 which provides, in pertinent part, that the statute of
limitations in Mississippi for medical malpractice claims runs “from the date the
alleged act, omission, or neglect shall or with reasonable diligence might have
been first known or discovered.” The Mississippi Supreme Court described how
the statute’s discovery rule operates in Sutherland v. Ritter:
      Thus, in medical negligence cases, we must focus our inquiry on
      when a plaintiff, exercising reasonable diligence, should have first
      discovered the negligence, rather than the injury. . . . Furthermore,
      in the medical malpractice context, the discovery rule may apply in
      cases where the injury is not latent at all, but where the negligence
      which caused the known injury is unknown. For instance, a patient
      who undergoes a medical procedure may develop serious
      complications which are clearly known. However, if the patient has
      no reason to know that the doctor’s negligence in performing the
      procedure caused the complications, the discovery rule will apply,
      even though the injury itself is not latent at all.7
As Sutherland makes clear, the application of the discovery rule is necessarily
a case-by-case factual determination – a conclusion fully consistent with the
Mississippi Supreme Court’s earlier cases.
      A reading of the case law discussed by the panel majority leads to the
rather unremarkable conclusion that the facts of each case were different and,

      6
          Sutherland, 959 So.2d at 1008.
      7
          Id. at 1008-09.

                                           17
                                         No. 04-60962

therefore, the statute of limitations began to run at different times. Sutherland
says nothing different; it purports only to resolve confusion as to whether the
statute of limitations is triggered by actual or presumptive knowledge of (1) just
the injury or, (2) the injury, professional negligence, and causal connection
between the two. Sutherland and the other case law reflect that all three factors
are involved when applying the discovery rule: when the patient knew or should
have known of the injury, the cause of the injury, and the relationship between
the injury and the cause, as guided by an overarching reasonableness standard.8
I describe the facts in each case at some length to dispel the notion that they are
in tension.
       The Mississippi Supreme Court addressed the discovery rule under the
Mississippi Tort Claims Act (MTCA) in Wright v. Quesnel.9 The discovery rule
under the MTCA operates in all parts pertinent like the statute here. The
plaintiff was pregnant, and during the eighth month of pregnancy, twice visited
a doctor within a week, presenting high blood pressure and symptoms of pre-
eclampsia. Both times the doctor merely ordered bed rest. Six days after the
first visit, she again went to the doctor with severe pain. The baby had died in
utero. On these facts, the court concluded that the plaintiff “had enough
information at the time of death such that she knew or reasonably should have
known that negligence had occurred.”10 The court specifically pointed out that
“Wright did not offer any evidence that she could not have discovered the injury


       8
         See, e.g., Neglen v. Breazeale, 945 So.2d 988, 990 (Miss. 2006) (“In other words, statute
of limitations begins to run when the patient can reasonably be held to have knowledge of the
injury itself, the cause of the injury, and the causative relationship between the injury and the
conduct of the medical practitioner.”). There is some question, discussed infra note 28, as to
whether Sutherland requires an exclusive focus on discovery of the negligence; however, that
question is not implicated here.
       9
           876 So.2d 362 (Miss. 2004).
       10
            Id. at 367.

                                               18
                                         No. 04-60962

within the applicable statute of limitations.”11        This is a straightforward
conclusion based on the facts: a patient complains of the same symptoms to a
doctor on multiple occasions within a week, the doctor orders no treatment, and
the patient in a short time experiences an adverse outcome related to the
symptoms she presented. A reasonable person would not need an expert to
connect the injury, the negligence, and the relationship between the two.
      Powe v. Byrd presents a similar situation, although under § 15-1-36.12 The
decedent had for two years received treatment from his doctor for gastritis and
hemorrhoids. As it turned out, he had cancer in his colon and lungs. However,
it took the plaintiff more than two years after the decedent’s cancer diagnosis to
file a malpractice claim. The plaintiff argued that she could not have known of
the negligence until she received an expert’s opinion. The court found that
argument to be “disingenuous and without merit.”13 It is a rather unsurprising
conclusion that the plaintiff did not need an expert report to suspect physician
error when, after the decedent received the wrong diagnosis and treatment for
years, it turned out he had colon cancer and not hemorrhoids. Once again, the
adverse outcome was directly related to the symptoms the patient presented
with and the mistreatment by the physician.
      The dictum in PPG Architectural Finishes Inc. v. Lowery describing Powe
is consistent.14 The court explained that the plaintiff in Powe did not need an
expert to tell her there was a problem. To the extent that PPG discusses the
injury and not the negligence, the statute of limitations at issue in PPG is




      11
           Id. (emphasis added).
      12
           892 So.2d 223 (Miss. 2004).
      13
           Id. at 228.
      14
           909 So.2d 47 (Miss. 2005).

                                             19
                                          No. 04-60962

Mississippi’s residual statute of limitations, § 15-1-49, which focuses on latent
injuries and not negligence.
       Nor does Barnes v. Singing River Hospital Systems create tension.15 The
plaintiff had been diagnosed as having rheumatoid arthritis and received
treatment beginning in 1989. In August 1995, the plaintiff went to her doctor
and complained of pain and swelling in her knee – a symptom ostensibly
consistent with rheumatoid arthritis. Nine days later, she went to the hospital
and complained of fever, vomiting, and pain in her right elbow. She was
diagnosed with acute bronchitis, gastritis with dehydration, and a fractured
right elbow – again, what appears to be a plausible diagnosis – and discharged.
However, the plaintiff had sepsis, a serious infection;16 she eventually had to
have multiple amputations. The Mississippi Supreme Court concluded that
“[w]hile the Barneses may have been aware of Lisa’s injuries before the one year
time limit was up, they could not reasonably have known that Singing River was
responsible for those injuries until their medical expert notified them of the
possible negligence.”17 This was a case where, even though there was an obvious
injury, the negligence that caused the injury was not necessarily obvious. There
was no facially obvious connection between the injury and the error, or the
relationship between the two. This is the type of situation that Sutherland
clarifies when it explains that the discovery rule covers cases of known injury
but unknown negligence.




       15
            733 So.2d 199 (Miss. 1999).
       16
         See Lawson v. Dallas County, 112 F. Supp. 2d 616, 622 n.11 (N.D. Tex. 2000) (“Sepsis
is a systemic blood infection in which pathogens and poisonous products infect the blood
stream.”). According to Stedman’s Medical Dictionary, 28th ed., sepsis is “[t]he presence of
various pathogenic organisms, or their toxins, in the blood or tissue.”
       17
            Barnes, 733 So.2d at 206.

                                              20
                                         No. 04-60962

      The panel majority’s discussion of Wayne General Hospital v. Hayes18
creates some tension, but the case itself does not. The decedent was originally
admitted to the hospital for observation for pneumonia; however, her condition
worsened and she was transferred to another hospital. Once there, her doctors
determined that she needed peritoneal dialysis. During that procedure, the
doctor perforated the decedent’s bowels, which resulted in peritonitis. She
developed a serious blood infection. She was then transferred to another
hospital, but eventually died. Her death certificate listed cardiomyopathy,
congestive heart failure, and sepsis as causes of death. The court concluded that
the plaintiffs should have known of the negligence by the time of the decedent’s
death:
      Moreover, the plaintiffs, at the time of [decedent’s] death, had
      enough information such that they knew or reasonably should have
      known that some negligent conduct had occurred, even if they did
      not know with certainty that the conduct was negligent as a matter
      of law. Since the death certificate included sepsis as one of the
      causes of death, it should have been apparent to the plaintiffs that
      some negligent conduct had occurred. Additionally, [decedent] was
      hospitalized at Arkansas Children’s Hospital subsequent to the
      bowel perforation which allegedly occurred at the University of
      Mississippi Medical Center. This should have alerted her survivors
      of possible problems with her medical treatment.19

It is not hard to see why the court concluded that plaintiffs knew or should have
known of the negligence: they knew that a surgical procedure had punctured the
decedent’s bowel; that she developed peritonitis; that she developed a blood
infection; and that she then had to be transferred to another hospital. Her death
certificate listed sepsis – a serious infection generally in the blood stream20 – as


      18
           868 So.2d 997 (Miss. 2004).
      19
           Id. at 1001.
      20
           See supra note 16.

                                             21
                                          No. 04-60962

a cause of death. That is a direct chain of events – similar to Wright and Powe
– where the causal connection between the alleged negligence and injury was
reasonably apparent.
      In Neglen v. Breazeale the decedent entered the hospital with an
abdominal aortic aneurysm, and he underwent surgery during which “the
affected blood vessel is replaced with a graft made of synthetic material.”21
However, following surgery, decedent complained of severe abdominal pain and
experienced post-surgical bleeding. The decedent was bleeding extensively from
the graft, and, after spending three days on a ventilator, died. The Mississippi
Supreme Court held that summary judgment on the statute of limitations
question was not appropriate “since questions of fact exist[ed].”22 The decedent’s
doctors had misinformed the plaintiff about some issues and did not tell her
about other issues concerning what happened. Considering the doctors’ role in
shaping the information the plaintiff knew, the court could not conclude as a
matter of law on the record before it that plaintiff acted unreasonably in relying
on what the doctors told her and waiting to pursue her claims.
      Finally, in Sutherland, the plaintiff complained that his doctor committed
malpractice by prescribing Zyprexa. Sutherland developed a number of side
effects, and decided to stop taking the drug without consulting his doctor.
However, he resumed taking it, and eventually checked himself into the hospital.
In his deposition, Sutherland stated that he checked himself in because, he said,
“Zyprexa was destroying my life.”23 When asked if he believed Zyprexa was the
cause of his problems, Sutherland answered that “[i]t was not a belief, it was




      21
           945 So.2d at 989.
      22
           Id. at 991 (emphasis added).
      23
           959 So.2d at 1006.

                                              22
                                  No. 04-60962

knowing.”24 When he was discharged from hospital, his discharge summary
stated that “the Zyprexa has been discontinued and the patient reports that he
feels less flat and ‘zombie’ like.”25 He later told another doctor that Zyprexa had
“caused a lot of bad side effects.”26 That doctor diagnosed Sutherland’s condition
as Tardive Dyskinesia Syndrome (TDS). Sutherland stopped taking Zyprexa in
April 2001, but did not file his claim until January 2004.
      Sutherland argued that his claim was not time-barred under § 15-1-36, as
he had a “latent injury,” and that he did not know he had TDS until January
2002. The Mississippi Supreme Court found Sutherland’s argument unavailing:
“By his own admission, Sutherland knew who, when, how, and by what he had
been injured soon after receiving treatment and the Zyprexa prescription from
Dr. Ritter, and certainly, no later than the date of his discharge from St.
Dominic. Considering Sutherland’s action, we conclude that Sutherland knew
that Dr. Ritter’s prescribing him Zyprexa had caused him to suffer an injury.”27
To recapitulate the circumstances in Sutherland: the plaintiff admitted knowing
that the drug prescribed by his doctor was the source of the injury of which he
complained. He knew of the injury, the alleged negligence, and the causal
connection between the two. He did not need to know the name of his condition
to know those things, much like the plaintiffs in Wright and Powe did not need
experts to alert them to the possibility of negligence.
      I highlight that Sutherland does not cast doubt on Wright, the case the
panel majority “previously concluded . . . was the most analogous to the Husses’
case and governed their claims.” In both cases, the Mississippi Supreme Court


      24
           Id.
      25
           Id.
      26
           Id.
      27
           Id. at 1009.

                                        23
                                       No. 04-60962

simply held that the plaintiff had enough information to know of the injury, the
alleged negligence, and the causal connection. Admittedly, the conclusion in
Wright was circumstantial and inferential, while plaintiff’s knowledge in
Sutherland was direct; but that alone cannot cause “the precedential effect of
Wright [to] no longer [be] clear.” In both cases it was clear that the plaintiff
knew or reasonably should have known of the injury, negligence, and causal
relationship between the two.
       In short, all of these cases flow naturally from the design of Mississippi’s
discovery rule: it is a fact intensive, three-element inquiry. In some instances
the negligence is quite obvious, in others not so. Facial similarities – such as
sepsis being involved in both Barnes and Hayes – create the appearance of
inconsistency when results differ, but the truth is that those similarities belie
greater differences that a careful examination of the facts in each case reveals.
These cases all turn on questions relating to what the plaintiff knew and when.
The Mississippi Supreme Court’s decision in Sutherland, even to the extent it
may create other problems, says nothing different.28




                                              III
       If anything, Sutherland adds clarity to this case, as it addresses the exact
issue here: when Huss should have known that the doctors’ negligence caused


       28
          As the Sutherland dissent points out, the majority’s focus on knowledge of the
negligence rather than the injury suggests that the statute of limitations would start to run
against a plaintiff who knows a doctor erred but is unaware that the error caused any injury.
See id. at 1010-11 (Diaz, J., dissenting); see also Jackson Clinic for Women, P.A. et al. v.
Henley, Nos. 2005-IA01833-SCT, 1999-IA-01286-SC, 2007 WL 2265136, at * 8 (Miss. Aug. 9,
2007) (Diaz, J., concurring in the judgment). This is in tension with the black letter principle
that no cause in tort lies where the plaintiff does not have an injury. This criticism of
Sutherland, however, does not apply here: Huss knew of the heart condition but the purported
negligence and causal connection to the injury were not obvious. In other words, this is not a
case where the plaintiff knew only of the negligence but not the injury.

                                              24
                                        No. 04-60962

her injury. Moreover, Sutherland lends support to my earlier dissent.29 The
Husses’ situation falls precisely into the hypothetical described in Sutherland
– a person who knows that he is ill or injured, but is unaware of any negligence,
much less any connection between the negligence and injury:
       Furthermore, in the medical malpractice context, the discovery rule
       may apply in cases where the injury is not latent at all, but where
       the negligence which caused the known injury is unknown. For
       instance, a patient who undergoes a medical procedure may develop
       serious complications which are clearly known. However, if the
       patient has no reason to know that the doctor’s negligence in
       performing the procedure caused the complications, the discovery
       rule will apply, even though the injury itself is not latent at all.30
       Huss, who was pregnant, went to her doctor complaining of cramping,
pressure, and contractions; when the first attempts at treating her contractions
failed, her doctor ordered that she be given Terbutaline. Her contractions
stopped, and her doctors ordered that she continue to take Terbutaline. The
injuries that Huss suffered, however, were not pregnancy related; rather, the
injuries were cardiomyopathy, pulmonary edema, and congestive heart failure.
Other than the sequence of events – pregnancy complications, treatment,
diagnosis of injury – there was nothing to clue Huss into the source of her injury.
Indeed, these types of ailments could have been naturally occurring or could
have resulted from life-style choices.31
       This case thus differs from those like Wright, Powe, and Wayne where
there was a direct injury-negligence-causation nexus. Nor is this case factually




       29
            See Huss, 465 F.3d at 209-11 (Higginbotham, J., dissenting).
       30
            959 So.2d at 1008-09 (emphasis added).
       31
          For example, Stedman’s Medical Dictionary lists five types of cadiomyopathy and
multiple etiologies for each. The etiologies include familial/genetic, idiopathic, alcohol, and
toxic substances.

                                              25
                                  No. 04-60962

similar to Sutherland where the plaintiff admitted knowing “who, when, how,
and by what he had been injured.”32
      Of course, what happened is that the defendants faced a choice at trial
between different defenses that were facially inconsistent: (1) Huss knew enough
of the causal connection between her condition and Terbutaline to trigger the
statute of limitations; or (2) there was no causal connection between Huss’s
condition and Terbutaline, and that the doctors could not know of any
connection. To have argued both to the jury would have been awkward to say
the least. Rather than do so, the defendants made a tactical choice that arguing
causation was the better defense. That entailed the implicit assertion that if the
physicians could not have known of any nexus, then Huss, a lay person, certainly
could not have known either. They lost, and then came hat in hand to this court.
We sit to correct errors made by the courts, not to correct the parties’ trial
strategies or to impose judicial will – here, medical tort reform – upon a jury in
frustration of its fundamental role in governance.
                                       IV
      With deference, the error in the question the panel majority certifies is
taking from the jury what is quintessentially a fact question – what did the
plaintiff know and when – and presenting it to the Mississippi Supreme Court
as a question a law. The majority has picked but three from among the many
factors from the case here and determined that, as a matter of law, one is,
standing on its own, going to be determinative of when the statute of limitations
began to run. But the answer to the majority’s question is: “It depends.” It
depends on, inter alia, the sequence of events; how obvious the connection
between the negligence and the injury is; what other conditions and illnesses the
plaintiff may have; what independent knowledge the plaintiff had; how confident



      32
           959 So.2d at 1009.

                                       26
                                    No. 04-60962

a diagnosis the plaintiff received; whether the plaintiff received conflicting
diagnoses; and what the negligent doctor(s) told or represented to the plaintiff,
the credibility of the doctor(s) involved, and the facial plausibility of what the
doctor(s) said. Sorting through these types of factual inquiries is not subject to
the precise line drawing that the majority’s question to the Mississippi Supreme
Court suggests. This is not to say that a jury always must decide if and when
the statute of limitations began to run; as Sutherland demonstrates there will
be occasions when it is clear as a matter of law. This, however, is not such a
case.
         Even assuming that Sutherland is inconsistent with the Mississippi
Supreme Court’s other discovery rule case law, certification is still
inappropriate. Sutherland is an authoritative explanation of the law; to the
extent other cases seem inconsistent, our task is simple: to follow and apply the
court’s most recent elucidation of the law. The court implied as much when it
explained that it was “tak[ing] this opportunity to clarify the law.”33 To these
eyes, the Mississippi Supreme Court helpfully described how courts are to
approach the factual situation – known injury but unknown negligence and
unknown causal connection – that is involved here. To the extent there are
inconsistencies, the Mississippi Supreme Court has already told us what we are
to do.
         With all respect for my colleagues, I must dissent.




         33
              959 So.2d at 1007.

                                         27
