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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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., 

, 610 (5th Cir. 2007), and that the limitations
issue is controlled by Barnes ex rel. Barnes v. Koppers, Inc., 

, 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., 

, 7 (Miss. 2010). There is no
exception under Mississippi law for pharmaceutical products.
      The summary judgment is AFFIRMED.




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