William Bryant, Jr. v. Wyeth, Incorporated ( 2012 )

Case: 11-60691 Document: 00511975367 Page: 1 Date Filed: 09/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 5, 2012
No. 11-60691
Lyle W. Cayce
Clerk
WILLIAM D. BRYANT, JR., Successor in Interest to Mary Anne Bryant,
Plaintiff-Appellant,
versus
WYETH, INCORPORATED,
Formerly Known as American Home Products Corporation;
WYETH PHARMACEUTICALS,
Formerly Known as Wyeth-Ayerst Pharmaceuticals, Incorporated,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 3:03-CV-250
Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60691 Document: 00511975367 Page: 2 Date Filed: 09/05/2012
No. 11-60691
The successor in interest to a deceased plaintiff appeals a summary judg-
ment in this common-law action under Mississippi law in which plaintiff asserts
products liability and fraud. The plaintiff mainly contends that the cancer that
resulted in death was caused by a drug manufactured by the defendant. The dis-
trict court dismissed per Mississippi’s three-year statute of limitations, see MISS.
CODE ANN. § 15-1-49, on the ground that the deceased did not sue within three
years of knowing of her cancer. Plaintiff claims that the defendant waived the
limitations defense and that, in any event, limitations begins to run only from
when the plaintiff knew or should have known of the alleged cause of the injury.
We have reviewed the briefs, applicable portions of the record, and the per-
tinent caselaw and have heard the arguments of counsel. We agree with the dis-
trict court that there was no waiver, see, e.g., Arismendez v. Nightingale Home
Health Care, Inc., 493 F.3d 602, 610 (5th Cir. 2007), and that the limitations
issue is controlled by Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357, 361
(5th Cir. 2008), which holds that in Mississippi, a cause of action accrues “when
the plaintiff has knowledge of the injury, not knowledge of the injury and its
cause,” accord Angle v. Koppers, Inc., 42 So. 3d 1, 7 (Miss. 2010). There is no
exception under Mississippi law for pharmaceutical products.
The summary judgment is AFFIRMED.
2