Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association PC, Defendants-Appellants, 465 F.3d 201

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 Gid-dens’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. Al-britton 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 disposi-tive 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.” 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 pretrial “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 ease, the defendants indicated an intent to pursue their limitations defense as a bar to the Husses’ claims. Ill 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.” 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.” We review the denial of motion for judgment as a matter of law de novo, drawing all reasonable inferences in favor of the non-moving party.

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.’ ” Because this is a diversity case, we are bound by state law. 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. 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 plaintiff presented with severe pain, at which time her obstetrician determined that her child had died in útero.

The Mississippi Supreme Court held, as a matter of law, that limitations began to run on the date of the child’s death. “[The plaintiff] had enough information at the time of death such that she knew or reasonably should have known that negligence had occurred.” The court explained that the plaintiff had seen her obstetrician “twice and received no treatment but an order to rest — her symptoms and discomfort continued, however. 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.” The case was decided on

summary judgment, and pointedly, the Mississippi court observed that the plaintiff “did not offer any evidence that she could not have discovered the injury within the applicable statute of limitations.” The statute at issue in Wright was Miss.Code ANN. § 11-46-11 (2002), the limitations provision in the Mississippi Tort Claims Act, rather than

section 15-1-36. However, the Mississippi Supreme Court has held that

section 11-46-11, like

section 15-1-36, is subject to the discovery rule and that “ ‘the operative time [for the commencement of the limitations period] is 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.’ ” Accordingly, there is no meaningful distinction between sections 11 — 46—11 and 15-1-36, as interpreted by the Mississippi courts.

In the case before us, the evidence adduced at trial demonstrates that suit was filed more than “two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” On May 10, 1998, Huss was diagnosed with the injuries of which she now complains. As of that day, she knew she had been treated over the course of her pregnancy by the defendants and had experienced difficulties that resulted in her seeking emergency medical treatment on several occasions.

She also knew the defendants had prescribed Terbutaline, which she had taken continuously for more than six weeks. All the facts forming the basis of her claim were known as of May 10, 1998. Applying the reasoning of Wright, the plaintiffs “should have known that there was some causal connection” between the treatment Barbara Huss received from the defendants and her injuries, even if they did not know the precise cause of those injuries.

Although the Mississippi Supreme Court has stated that knowledge of “ ‘a causal relationship between the negligent act and the injury or disease complained of is essential because “it is well-established that prescription does not run against one who has neither actual nor constructive notice of the facts that would entitle him to bring an action,” ’ ” the court has explained this means “that the ‘focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury.’ ” The court has also candidly acknowledged that “[sjeveral [of its] recent decisions further erode the level of knowledge required to vest a cause of action” for purposes of statutes of limitations.

In Powe v. Byrd, another recent medical malpractice case from the Mississippi Supreme Court, the plaintiff received a course of treatment over approximately two years for gastritis and hemorrhoids. He was ultimately diagnosed in March 1998 with cancer in his colon and lungs and died in August of that year. His survivors contended that limitations on Powe’s claim against the physician who failed to diagnose the cancer did not commence under

section 15-1-36 until December 1, 2000, when the plaintiffs received an expert’s opinion that the treating physician’s negligence may have caused Powe’s death. The Mississippi Supreme Court held, as a matter of law, that

section 15-1-36 barred the claim. The court reasoned, “Cecil [Powe] received treatment for gastritis and hemorrhoids for approximately two years from the Medical Group Clinic; he eventually discovered in March of 1998 that his problems were far worse than expected and that he had colon cancer.” The Mississippi Supreme Court elaborated on its holding in Powe in a subsequent case, PPG Architectural Finishes, Inc. v. Lowery.

The court explained, “In Powe, this Court found that a plaintiffs 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 [he] had known of his injury as evinced by the two years of prior medical treatment for the injury.” This rationale compels the conclusion that Barbara Huss knew or reasonably should have known of her injury when she was diagnosed on May 10, 1998 with cardiomyopathy, congestive heart failure and pulmonary edema after a difficult pregnancy that included administration of Terbutaline.

Unlike the plaintiff in Sarris v. Smith, Barbara Huss did not need to await receipt of her medical records to have known of the causal relationship between her treatment by the defendants and her car-diomyopathy, congestive heart failure and pulmonary edema. In Sarris, Shelby Johnson had a heart attack and was examined at an emergency room. The principal treating physician consulted with a cardiologist, who failed to tell either Johnson or the treating physician that Johnson should seek follow-up care and failed to make any notation to that effect in the medical charts.

Unaware of the need for followup, the treating physician released Johnson from the hospital, and a few days later Johnson suffered a fatal heart attack at his home. The Mississippi court held that Johnson’s wife “could not reasonably have known, until she reviewed the medical records, the causal relationship between Johnson’s death and [the cardiologist’s] failure to inform either him or [his treating physician] that Johnson needed follow-up treatment.” Huss, however, had all the operative facts by May 10, 1998.

She did not need access to her medical charts to discover her injuries, who treated her, or that Terbutaline was prescribed for her. The dissent contends that when a physician denies that a patient’s injury was caused by the physician’s course of treatment or administration of a drug, limitations does not commence to run unless and until causation is established at trial by a jury’s findings. This would mean that limitations never commences to run with respect to non-negligent physicians. The Mississippi courts have not construed

section 15-1-36 in this manner. They have said, “[T]he ‘focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury > >> Because the plaintiffs filed suit more than two years after the date the alleged act, omission or neglect was or with reasonable diligence might have been first known or discovered, the plaintiffs’ claims are prescribed as a matter of law, and the magistrate judge erred in denying the defendants’ motion for judgment as a matter of law.

We therefore REVERSE the trial court’s judgment and RENDER judgment that the plaintiffs take nothing. REVERSED AND RENDERED. . Fed.R.Civ.P. 50(a). . 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].

Miss.Code Ann. § 15-1-36(1), (2). . Fed.R.CivP. 50(a). . Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 918 (5th Cir.2002). . Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). . See Mathis v. Exxon Corp., 302 F.3d 448, 453 (5th Cir.2002). . 876 So.2d 362, 367 (Miss.2004). . Id. . Id. . Id. . Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1001 (Miss.2004) (quoting Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001)). . See Powe v.

Byrd, 892 So.2d 223, 227 (Miss.2004) (construing Miss.Code Ann. § 15-1-36 and holding that ''[f]or purposes of the discovery rule, the two-year period 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’" (quoting Sarris, 782 So.2d at 723)). . Miss.Code Ann. § 15-1-36. . Wright, 876 So.2d at 367. . PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005) (quoting Sweeney v. Preston, 642 So.2d 332, 334 (Miss.1994)). .

Id. at 51 (quoting Wright, 876 So.2d at 366) (emphasis in original). . Id. . 892 So.2d 223, 225 (Miss.2004). . Id. at 227-28. . 909 So.2d 47 (Miss.2005). . Id. at 51. But see Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 206 (Miss.1999) (construing Miss.Code Ann. § 11-46-11(3) and holding that a husband and wife “may have been aware of [the wife’s] injuries before the one year time limit was up, [but] they could not reasonably have known that [the hospital] was responsible for those injuries until their medical expert notified them of the possible negligence”). .See Wayne Gen. Hosp. v.

Hayes, 868 So.2d 997, 1001 (Miss.2004) (holding, 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; the court said, "[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 (emphasis added)); Gentry v.

Wallace, 606 So.2d 1117, 1118, 1119 (Miss.1992) (observing in a wrongful death case that a decedent’s cause of action for malpractice would have accrued when she was diagnosed with breast cancer, which her treating physicians had failed to diagnose in the preceding six months despite a previous history of breast cancer and complaints of swollen lymph nodes and other disturbing symptoms), overruled on other grounds by Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926 (Miss.2006). . 782 So.2d 721 (Miss.2001). . Id. at 723-24. .

PPG Architectural Finishes, 909 So.2d at 51 (quoting Wright, 876 So.2d at 366) (emphasis in original).