Johnson v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
August 9, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-51125
_______________
NITA HAYNES JOHNSON,
INDIVIDUALLY AND AS NEXT FRIEND OF TALAYA HAYNES, A MINOR,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, GARZA, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Nita Johnson, individually and as next
friend of Talaya Haynes, her minor daughter,
filed this Federal Tort Claims Act (“FTCA”)
action, and the district court granted summary
judgment for the United States based on John-
son’s failure to file her administrative claim
within two years after accrual pursuant to 28
U.S.C. § 2401(b). The court, noting that the
summary judgment motion was late according
to the pretrial order, nonetheless considered it
because the government cited caselaw sug-
gesting that the issue is jurisdictional and thus
could be considered at any time. The court
further noted that Johnson did not contest
whether the statute of limitations is jurisdic-
tional. Johnson appeals, arguing that the court
did not have authority to address the late sum-
mary judgment motion and incorrectly held
that limitations had run. We affirm.

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I.
Johnson was seventeen years old and preg-
nant; she received pre-natal care at Blanchfield
Army Community Hospital. During a pre-natal
checkup on April 20, 1994, a nonstress test was
ordered to monitor the fetal heart rate. The
results showed variable decelerations, so John-
son was admitted to the labor and delivery ward.
The following day, by means of a “crash
cesarean section” procedure, Johnson gave birth
to Talaya. Medical records show that she was
floppy, apneic (suffering from an absence of
breathing), and dusky at birth and “was without
a heart rate or respiratory effort.” There were
two unsuccessful efforts to resuscitate her by
providing oxygen, before a third effort succeed-
ed. Talaya was placed on a ventilator.
In her deposition, Johnson remembered that,
at Talaya’s four-month checkup, a nurse had
been concerned about her daughter and had told
her that Talaya was not doing what she was
supposed to be doing at four months. Johnson
later gave a medical history to Nancy Trent, a
pediatric nurse practitioner at a children’s clinic
on November 17, 1994, when Talaya was about
seven months old. From her observations of
Talaya and her history taken from Johnson,
Trent reported that Talaya was very rigid, espe-
cially in the upper body, had exaggerated, de-
veloped triceps and biceps to hold her torso up,
did not breathe at birth for five minutes, and had
neo-natal seizures.
On November 21, 1994, Trent referred Tala-
ya to a pediatrician, Quentin Humberd, who
stated that he had seen Talaya because of con-
cerns of developmental motor delay; after an
examination, he concluded that Talaya had neu-
rological findings that were beyond the range of
normal for her age. Humberd wanted to rule out
cerebral palsy and referred Talaya to the
Tennessee Early Intervention System
(“TEIS”). Humberd recalled that at the No-
vember 21 visit he obtained most of the his-
tory from Johnson and that he learned that
Talaya had had a difficult birth, including as-
phyxia. He indicated that he was trying to
relate what the mother was describing about
the problems at birth to the developmental
problems he was noticing.
On December 2, TEIS received the refer-
ral of Talaya from the clinic; the reason giv-
en for referral was possible cerebral palsy.
The intake form indicated (in the section
containing information provided byJohnson)
that Talaya had not been breathing when
born and had spent two weeks in the hospital
on oxygen and that Johnson had had a
C-Section because Talaya’s heart rate had
dropped.
A developmental assessment of Talaya
was conducted in January 1995, after which
she was seen by the assessor for an hour
each week from March 1995 until June 27,
1996, when Johnson moved to Texas. Some
time during this period, the assessor was told
by Johnson that “it might have happened at
birth” and that she had contemplated suing
the Army. In cross-examination, the as-
sessor clarified that Johnson had not said
that she had been told that the doctors or
nurses had been negligent or that anyone had
done anything wrong, but only that Johnson
“thought that it might have happened at
birth.”
On February 3, 1995, at a nine-month ex-
amination, Humberd assessed Talaya’s con-
dition as consistent with a static encephalo-
pathy (brain dysfunction) “and most likely
Cerebral Palsy.” Humberd recalled that

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Johnson had come back in for a conference at
which he had explained to her that her daugh-
ter’s problems were not from viral infection or
another degenerative condition but instead were
the result of something that had happened at
some specific time, an event such as low oxygen
or trauma. He then gave her a handout on
cerebral palsy and a reading list about support
“so that [she] could talk to other families . . .
that had cerebral palsy, et cetera.”
Humberd explained in his deposition that he
suspected an association between Talaya’s brain
injury and her birth by emergency C-section. He
explained that he did not definitively know what
had caused Talaya’s cerebral palsy, so he did not
tell Johnson, during their February 3 discussion,
specifically what had caused the brain damage.
Nonetheless, he did “entertain a ‘differential
diagnosis’ that there was a connection between
Talaya’s birth trauma and [her] cerebral pal-
sy”and “presented it to Mrs. [] Johnson as ‘one
of the potential causes of why a child can have
this kind of problem . . . .”
On March 13, 1995, Johnson was interviewed
by a physical therapist, Gay Lynn Westover. In
her notes of that meeting, Westover stated that
she was told by Johnson that Talaya had had
breathing problems at birth, a decreased heart
rate, had been in an incubator, and had experi-
enced developmental delays as early as three
months after birth. Eventually, Talaya was given
a definitive diagnosis of cerebral palsy, most
likely in April 1995, when she was twelve
months old.
In the summer of 1996, Johnson and Talaya
moved to Texas, where Talaya continued to
receive medical care through the Army. On June
6, 1997, Johnson gave birth to another daughter,
Tatyana, who has shown no subsequent signs of
developmental problems, at Beaumont Army
Medical Center in El Paso. Johnson recalled
that, after the baby’s heart rate dropped, the
doctors delivered Tatyana by C-section.
Johnson recalled no one telling her that
Tatyana had stopped breathing at birth. In
her deposition, Johnson testified that in
2000, over two years after her second daugh-
ter’s birth, she “saw a commercial on TV
about cerebral palsy,” a “lawyer’s commer-
cial . . . saying if your child has cerebral pal-
sy this might be the reason.” She testified
that she contacted her lawyers “[r]ight after”
seeing the commercial. On May 10, 2001,
she filed an administrative claim, and she
sued on December 27, 2002.
II.
Johnson argues that the district court did
not have authority to address the late-filed
summary judgment motion, because the
FTCA’s statute of limitations is not jurisdic-
tional. We agree with the district court’s
decision, however, because even if that stat-
ute of limitations were not jurisdictional (an
issue that, as the district court noted, ap-
pears to be undecided by this court), the
district court had authorityto grant summary
judgment notwithstanding the fact that the
motion was filed later than provided in the
pretrial order.
“A party against whom a claim, counter-
claim, or cross-claim is asserted or a declara-
tory judgment is sought may, at any time,
move with or without supporting affidavits
for a summary judgment in the party’s favor
as to all or any part thereof.” FED. R. CIV.
P. 56(b) (emphasis added). Because here
the defendant moved for summary judgment
before trial, the motion was timely under rule

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56(b).1 Though the caselaw expresses some
concerns about the granting of summary judg-
ment motions on the eve of trial, Guillory, 95
F.3d at 1328, this is not an issue in this case,
because the motion was filed a month in advance
of the date set for trial.2
The violation of the pretrial order does
not warrant reversal. Rule 16(f) provides for
sanctions that are “just” for violations of
pretrial orders. See FED. R. CIV. P. 16(f).
Johnson did not argue, in the district court,
that the summary judgment motion was late
or that sanctions should be imposed under
rule 16(f). Therefore, she waived these
arguments for the purpose of appeal.3
A closer issue is whether a pretrial order
can abridge rights granted to defendants un-
der FED. R. CIV. P. 56(b).4 It is uncertain
1 See Guillory v. Domtar Indus., 95 F.3d 1320,
1328 (5th Cir. 1996) (“The timing of the summary
judgment does not warrant reversal in this case. Rule
56(b) allows a defendant to move for summary
judgment at any time. Accordingly, the court may
grant summary judgment any time before trial.”).
2 Further, the ten-day notice requirement of rule
56(c) was satisfied. As we explained in Daniels v.
Morris, 746 F.2d 271, 274-75 (5th Cir. 1984),
Under Fed. R. Civ. P. 56(c) “the motion [for sum-
mary judgment] shall be served at least 10 days
before the time fixed for the hearing.” This rule
does not by implication require the district court
to hold an oral hearing. As we have previously
interpreted it, the rule requires only that, if there
is an oral hearing, there be ten-days advance
notice; if there is not a hearing, the adverse party
must have at least ten days to respond to the
motion for summary judgment. Rule 56(c) does
not require that a party be given advance notice of
a “date certain” on which a motion for summary
judgment is to be decided by the trial court.
Although no hearing was held, Johnson had the
opportunity to respond to the motion and in fact did
so. Therefore, the requirements of rule 56(c) were
met. See id. at 276-77 (“When, as here, the parties
have been given ample opportunity to respond to the
motion for summary judgment, the district judge may
rule on it even after a significant delay, without
giving the parties advance notice of the court’s
intention to consider and decide the motion on a “date
certain.”); see also Hamman v. Southwestern Gas
Pipeline, Inc., 721 F.2d 140 (5th Cir. 1983) (stating
that where appellants had filed a responsive brief, the
requirements of Rule 56(c) were satisfied even if the
(continued...)
2(...continued)
district court did not advise them of when it
would decide the summary judgment motion).
3 Little v. Liquid Air Corp., 37 F.3d 1069,
1071 n.1 (5th Cir. 1994) (per curiam) (en banc)
(citing Topalian v. Ehrman, 954 F.2d 1125,
1132 n.10 (5th Cir. 1992), and explaining that
this court’s inquiry “is limited to the summary
judgment record and the plaintiffs may not ad-
vance on appeal new theories or raise new issues
not properly before the district court to obtain
reversal of the summary judgment”).
4 Compare Manetas v. Int’l Petroleum Carri-
ers, Inc., 541 F.2d 408, 413 (3d Cir. 1976)
(holding that “the 45-day Pre-Trial Order limita-
tion for filing motions for summary judgment
was not a bar to a later filing because Fed. R.
Civ. P. 56(b) expressly authorizes a ‘defending
party’ to move ‘at any time’ for a summary
judgment”), with Julian v. Equifax Check Servs.,
178 F.R.D. 10, 16 (D. Conn. 1998) (“The Su-
preme Court did not intend Federal Rule 16(b)(2)
to be ignored when a party filing a summary
judgment motion invokes the ‘at any time’ lan-
guage of Federal Rule 56. The ‘at any time’
provision of Federal Rule 56 for filing summary
judgment motions must be interpreted to be
subject to the case management dictates of Fed-
(continued...)

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whether the “case management dictates” of rule
16(b) must necessarily prevail over the “at any
time” dictates of rule 56(b), and not vice versa.
There is no indication that one interest is greater
than the other, in either rule 16(b) or the advi-
sory notes. Rule 16(b) could certainly also be
interpreted to read in harmony with rule 56(b):
Although the district court may impose time
limits for filing motions, it cannot restrict the
limits that are already expressly provided by the
rules.
Also unresolved is whether the “case manage-
ment” concerns are valid in situations such as
this one, in which the motion for summary judg-
ment is filed one month in advance of trial.
Surely, a defendant who waits that late to file for
summary judgment runs the risk that its motion
will be denied because the district court may not
have enough time to look at it carefully.
This does not mean, however, that “at any
time” in rule 56(b) means anything less than
what it says. If the motion is denied, the court
system is in the same position as if the defendant
were not permitted to file at all at that time: The
case would go to trial. In the rare case in which
a motion for summary judgment will be granted
even if it is filed only one month before trial, the
plaintiff suffers no prejudice.
Further, it is the scheduling order, not
rule 16(b) per se, that conflicts with rule
56(b). Because not even local court rules
can diminish rights afforded to parties by the
rules,5 it is questionable whether scheduling
orders can do so. We need not decide that
question here, because Johnson waived the
timeliness argument and did not respond to
the government’s rule 56(b) argument on
appeal.
We also note that Johnson did not argue,
in the district court, the FTCA’s statute of
limitations is not jurisdictional; in that court
she merely argued that the court had juris-
diction because limitations had not expired.
As we have observed, she may not raise, on
appeal, theories that she did not raise before
the district court. The rule that jurisdictional
issues may not be waived but can be raised
at any time is not invoked in this case. That
rule is grounded on the principle that be-
cause federal courts are courts of limited
4(...continued)
eral Rule 16(b).”). See also Lemon v. Dugger, 931
F.2d 1465 (11th Cir. 1991) (upholding denial of
motion for summary judgment filed outside of sched-
uling order and suggesting that rule 16(b) prevails
over rule 56(b)); Kennedy v. City of Cleveland, 797
F.2d 297, 301 & n.6 (6th Cir. 1986) (“Although Fed.
R. Civ. P. 56(b) states that a defendant may move for
summary judgment ‘at any time,’ we do not believe
that this precludes the district court from controlling
the proceedings before it, at least not to the extent of
requiring it to consider disruptive motions on the eve
of trial.”).
5 Brown v. Crawford County, Ga., 960 F.2d
1002, 1008 (11th Cir. 1992) (invalidating local
rule that restricted the right to file a summary
judgment motion because “[d]istrict courts . . .
must not circumvent the Federal Rules of Civil
Procedure by implementing local rules or ‘proce-
dures’ which do not afford parties rights that
they are accorded under the Federal Rules.”); see
also Carver v. Bunch, 946 F.2d 451, 453 (6th
Cir. 1991) (“[L]ocal court rules . . . cannot
conflict with the Federal Rules of Civil Proce-
dure, Acts of Congress, and rules of practice and
procedure prescribed by the Supreme Court.”);
Coady v. Aguadilla Terminal Inc., 456 F.2d
677, 678 (1st Cir. 1972) (“[A] local rule cannot
be applied if it is contrary to a federal statute or
rule.”)).

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jurisdiction,6 the parties cannot confer subject
matter jurisdiction “by indolence, oversight,
acquiescence, or consent.” United States v.
Horn, 29 F.3d 754, 768 (1st Cir. 1994). John-
son’s challenge is not that subject matter juris-
diction improvidentlyor erroneouslyexisted, but
that the district court should not have considered
the late-filed motion. That is an argument she
waived by not asserting it in the district court.
III.
Section 2401(b) bars a tort action against the
federal government unless the claim is first pre-
sented to the appropriate federal agency “within
two years after such claim accrues.” United
States v. Kubrick, 444 U.S. 111, 113 (1979)
(citing § 2401(b)). The statute does not define,
however, when a claim “accrues.” Johnston v.
United States, 85 F.3d 217, 219 (5th Cir. 1996).
The general rule under the FTCA is that a tort
action accrues at the time of a plaintiff’s injury.
Kubrick, 444 U.S. at 120. For FTCA medical
malpractice cases, however, Kubrick adopted a
“discovery rule” for claim accrual, under which
the time starts to run when the plaintiff has the
information necessary to discover “both his in-
jury and its cause.” Id. This is because, where
“the injury or its cause may not be manifested to
the plaintiff until many years after the event,” the
tort action should not accrue, for statute of
limitations purposes, “until the plaintiff is put on
notice of the wrong.” Waits v. United States,
611 F.2d 550, 552 (5th Cir. 1980).
As the district court noted, there is no dispute
that Johnson knew about the injury more
than two years before she filed her claim,
most likely in April 1995, when Talaya was
about a year old (which was about six years
before Johnson filed her claim). The dispute
is whether she knew, or “in the exercise of
reasonable diligence should [have] dis-
cover[ed],” the cause of Talaya’s injury.
MacMillan v. United States, 46 F.3d 377,
381 (5th Cir. 1995) (quoting Harrison v.
United States, 708 F.2d 1023, 1027 (5th Cir.
1983)). “The putative plaintiff [] need not
know the legal or medical significance of an
act or an injury for the cause of action to
accrue.” Id. “Instead, the limitations period
begins to run when the plaintiff has ‘knowl-
edge of facts that would lead a reasonable
person (a) to conclude that there was a
causal connection between the treatment and
injury or (b) to seek professional advice, and
then with that advice, to conclude that there
was a causal connection between the treat-
ment and injury.’” Id. (quoting Harrison,
708 F.2d at 1027) (emphasis added).
We agree with the district court that
MacMillan controls and that a reasonable
person in Johnson’s position would have
been aware of enough facts to trigger the
statute of limitations more than two years
before she filed her claim. In MacMillan, a
case also involving birth problems resulting
in neurological injury, we held that a plaintiff
with knowledge of the injury and of a “prob-
able” cause of that injury had a duty “to
inquire in the medical and legal community”
and “to seek professional advice regarding
[the baby’s] neurological difficulties and the
connection, if any, to the problems associ-
ated with her birth.” 46 F.3d at 381.
Johnson’s attempt to distinguish MacMil-
lan is unconvincing. She argues that in
6 Federal courts are courts of limited jurisdiction
having subject matter jurisdiction only over those
matters specifically designated by the Constitution or
Congress. Epps v. Bexar-Medina-Atascosa Counties
Water Improvement Dist., 665 F.2d 594, 595 (5th
Cir. 1982); B., Inc. v. Miller Brewing Co., 663 F.2d
545, 548 (Former 5th Cir. Dec. 1981).

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MacMillan the plaintiff “knew” about the cause
of the injury, which satisfied Kubrik’s require-
ment that both injury and its cause must be
“known” before limitations can run. But in
MacMillan the plaintiff did not know what the
cause of the injury was; she only knew about a
potential cause.7
Precisely because the “connection” between
the birth problems and the neurologicalproblems
was not fully known (only “probable”),
MacMillan imposed a duty to seek advice once
this probable cause was revealed to the plaintiff
by the doctor, namely “to seek professional ad-
vice regarding [the baby’s] neurological difficul-
ties and the connection, if any, to the problems
associated with her birth.” There would be no
need to “seek professional advice” about the
“connection” between the birth problems and the
injury if the “cause” of the injury was known.
Similarly here, a potential (and most likely
cause according to the differential diagnosis)
was revealed to Johnson by Humberd, who ruled
out genetic issues, stroke, fetal infections such as
meningitis, congenital defects, and severe
prematurity, which left the most likely cause
“going back again to the history . . . an associa-
tion at [the] time that child was born that she
had to have [an] emergency C-section.” Hum-
berd presented the birth problems to
Haynes-Johnson as “one of the potential causes
of why a child can have this kind of problem at
seven months of age, and sometimes that diag-
nosis can be delayed.” Therefore, in April 1995,
armed with the diagnostic of cerebral palsy, and
knowing about the possible connection between
birth injury and cerebral palsy, Johnson should
have “sought advice” about the connection
between the two.
Johnson’s contention that she did not
know of the potential connection between
birth injury and cerebral palsy because, when
Humberd told her about the connection,
Talaya had not been fully diagnosed with
cerebral palsy, is questionable. In February
1995, Humberd told Johnson that Talaya
might have cerebral palsy and that if she did,
the most likely cause was an injury at birth.
The diagnosis of cerebral palsy was finalized
in April 1995. Therefore, it is meritless to
say that the three month lapse erased the
mother’s notice of the doctor’s statement
that if Talaya did have cerebral palsy, it was
potentially caused by injury at birth.
Johnson also argues that Osborn v. Unit-
ed States, 918 F.2d 724, 732 (8th Cir.
1990), supports her argument, not the dis-
trict court’s, because in that case the claim
did not accrue even if the plaintiff had
learned of a “connection” between the injury
and the treatment. To the contrary, how-
ever, there was no such “connection” drawn
in that case.
There, a doctor ordered that pertussis be
stopped, yet at no point was the pertussis
connected to the injury. In fact, the court
held that it was not “Dr. Oksol’s statement
[stopping pertussis] may have demonstrated
understandable caution and conservative
medical judgment, but it utterly failed to ad-
dress the issue of causation.” Id. at 733.
Additionally, in that case plaintiffs had rea-
son not to suspect that pertussis was the
cause, because Dr. Schuman had assured her
just before the fourth shot was given that it
was “perfectly safe.” Id. at 726. In contrast,
here Johnson does not contend that anyone
7 See MacMillan, 46 F.3d at 381 (“Dr. Pollard’s
report stated that, “it appears likely that Tanya suf-
fered anoxia at birth and probably sustained some
neurological damage as a result.”) (emphasis added).

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had assured her that Talaya’s birth was perfectly
uneventful and that cerebral palsy is never
caused at birth.
Johnson further contends that the claim did
not accrue until she saw the television commer-
cial in 2000, because until then she could not
connect Talaya’s cerebral palsy to negligent
treatment at birth. As the district court noted,
this type of argument was squarely rejected by
Kubrick, which explained that as long as the
nature and (potential) cause of the injury are
known, a plaintiff need not know that the injury
was negligently created.
Johnson knew that Talaya had cerebral palsy
and that a potential and likely cause was some-
thing that happened at birth. Thus, as Kubrick
explained, she did not need to know that the
treatment at birth was negligent, as long as she
knew that some injury could have occurred at
birth. Nor, as the district court correctly ob-
served, did she need to know exactly how the
injury was inflicted at birth (e.g., asphyxia or
improper administration of Pitocin).
Because MacMillan controls, we need not
decide the correctness of the district court’s al-
ternative holding, which is that Johnson does not
benefit from the discovery rule, because she
failed diligently to inquire about the cause of
Talaya’s injury.8 Last, we reject the remainder
of Johnson’s arguments with respect to when the
limitations period begins to run,9 for the same
reasons discussed by the district court.
AFFIRMED.
8 See., e.g., Osborn, 918 F.2d at 732 (explaining
that “an injured plaintiff cannot claim the benefit of
the discovery rule simply by waiting passively for the
cause of injury to be revealed”).
9 These are the arguments concerning (1) whether
the youth of the plaintiff matters in deciding what a
(continued...)
9(...continued)
reasonable person in her situation would do; (2)
whether circumstances related to Tatyana’s birth
matter even if she was born in a different hospi-
tal in another state; (3) whether Johnson’s belief
that the cerebral palsy was mild matters; and (4)
whether the statute only began to run when she
saw a commercial related to cerebral palsy, even
if that commercial did not convey any new
information.

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