Barbara HUSS; Rodney Huss, Plaintiffs-Appellees, v. John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association, PC, Defendants-Appellants, 508 F.3d 240

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: 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 opinion concluding that the medical malpractice claims of Barbara and Rodney Huss were barred, as a matter of law, by file applicable Mississippi two-year statute of limitations,

section 15-1-36 of the Mississippi Code. 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. That motion was accordingly denied. However, this panel of the Fifth Circuit Court of Appeals granted rehearing before the panel. The Mississippi Supreme Court subsequently issued its opinion in Sutherland v.

Ritter, 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 plaintiffs 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 toco-lytic (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 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 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 Terbuta-line 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 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 cardiom-yopathy 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 Huss-es, 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 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 cardiom-yopathies 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 car-diomyopathy 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.

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 cardiomyo-pothy, (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. Judge Higginbotham dissented, concluding that limitations did not bar the claims. 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.

Ill 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. 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.

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 pretrial 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 Erie 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” 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.” The panel majority does not agree that 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.” 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. Ritter 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, 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.

The decision in Wright v. Quesnel, cited in Sutherland, held that when a plaintiff discovered that her child had died in útero, 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.

QuesnePs treatment.” 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. 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. The Mississippi Supreme Court appears to have held that limitations commenced to run when Powe was diagnosed with colon and lung cancer. The court’s decision in PPG Architectural Finishes, Inc. v.

Lowery, cited in Sutherland, characterized the holding in Powe as follows: “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 Powe had known of his injury as evinced by the two years of prior medical treatment for the injury.” 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, in which the court construed

section 11-46-11(3). In Barnes, Lisa Barnes was transferred from the defendant hospital, Singing River, on September 28, 1995, after she was diagnosed with numerous serious conditions including sepsis. 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. Barnes’s attorney received her medical records from Singing River in mid-February 1996, and he informed Singing River on May 8, 1996 that he believed it was responsible for Barnes’ injuries.

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. 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. 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. However, in Neglen v.

Breazeale, 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 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.

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 Ter-butaline.

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 confíne 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. . Huss v. Gayden, 465 F.3d 201 (5th Cir.2006). . 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]. .

Judge Barksdale did not participate. . 959 So.2d 1004 (Miss.2007). . See Huss v. Gayden, 465 F.3d 201, 208-09 (5th Cir.2006). . Id. at 209-11 (Higginbotham, J., dissenting). . See id. at 204-05. . Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). . Infra 248. . Infra 254. . Miss.Code Ann. § 15-1-36(1), (2) (emphasis added). . 959 So.2d 1004 (Miss.2007). . Id. at 1009. . 876 So.2d 362 (Miss.2004). . 959 So.2d at 1009. . 876 So.2d at 367. . See Huss, 465 F.3d at 206. . 892 So.2d 223, 227-28 (Miss.2004). .

Id. . 909 So.2d 47 (Miss.2005). . 959 So.2d 1004, 1009 (Miss.2007). . 909 So.2d at 51. . 733 So.2d 199, 202 (Miss.1999). . Miss.Code Ann. § 11-46-11(3). . Barnes, 733 So.2d at 200. . Id. . Id. . Id. at 206. . 868 So.2d 997, 1001 (Miss.2004). . Id. . 945 So.2d 988 (Miss.2006). . Id. at 991.