Hales v. Respiratory Testing ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-61134
Summary Calendar
_______________________
GRIFF ANGELO HALES,
Plaintiff-Appellant,
versus
RESPIRATORY TESTING, Respiratory Testing Services Inc,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
2:04-CV-242
_________________________________________________________________
Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Griff Hales appeals the district court’s dismissal of his
action on statute of limitations grounds. We AFFIRM.
BACKGROUND
Hales brought this negligence action against Respiratory
Testing Services, Inc. (“RTS”) for its alleged failure to inform
Hales of test results indicating a spot on his lungs. Hales alleges
that he hired an attorney to pursue claims relating to his exposure
to asbestos. That attorney contracted with RTS to provide medical
testing, which RTS performed in August 1999. On December 17, 1999,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Hales was tested by another provider and informed that he had “a
spot on his lung.” By February 2000, the cancer had spread and two-
thirds of Hales’s right lung was removed. On June 3, 2000, Hales
finally received the results of the test administered by RTS; these
tests indicated the possibility of cancer. In January 2001, Hales
was discovered to have four cancerous brain tumors. In a lawsuit
filed December 12, 2003, Hales complains that he suffered damages
by virtue of RTS’s failure to disclose timely his test results; he
would have begun treatment earlier had he known of the cancer.
DISCUSSION
The district court correctly found that the Mississippi
statute of limitations, which governs this diversity case, had
expired. Mississippi law provides that Hales had three years in
which to file his lawsuit from the time his cause of action accrued.
MISS. CODE ANN. § 15-1-49. “[T]he cause of action does not accrue
until the plaintiff has discovered, or by reasonable diligence
should have discovered, the injury.” Id.
Before the district court, Hales argued that his cause of
action did not accrue until he knew the cancer had spread to his
brain, in January 2001. He argued that RTS’s delay in telling him
about the cancer caused the spread of that cancer to his brain,
which he first discovered in January 2001. The district court
rejected this argument, holding that Hales’s cause of action accrued
when he discovered he had lung cancer, at the latest in February
2
2000, or, giving him the benefit of the doubt, when he received the
RTS test results in June 2000. The district court’s analysis is
correct: The spread of cancer from one part of the body to another
does not give a plaintiff a later accrual date; the accrual date is
when the plaintiff discovered he had cancer. See Schiro v. Am.
Tobacco Co., 611 So. 2d 962, 965 (Miss. 1992) (claim accrued upon
diagnosis that mass was cancerous).
These were the only arguments made before the district
court.1 “We will not disturb the district court’s judgment based
upon an argument presented for the first time on appeal.” Pluet v.
Frasier, 355 F.3d 381, 384-85 (5th Cir. 2004). Accordingly, the
judgment is AFFIRMED.
1
On appeal, Hales argues that he only became aware of the cause of his
injury when he discovered, in September 2003, that it was RTS who allegedly
failed to disclose his test results. RTS avers that all Hales had to do to learn
the identity of RTS as the test provider was ask his attorney, and thus, he was
not reasonably diligent in pursuing the claim.
3