United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is the defendants’ motion for summary
judgment based on the statute of limitations. The matter is
fully briefed and ready for adjudication.
Factual and Procedural History
10, 2015, Johnie Hannah consumed chicken while
dining at the Piccadilly restaurant in Jackson, Mississippi.
The next day, he began to experience nausea, vomiting,
chills, and sweats. These symptoms lasted for several days
until Hannah finally went to the hospital for treatment on
June 17, 2015.
filed this lawsuit in state court on June 15, 2018. It was
properly removed to this Court on the basis of diversity
jurisdiction. See 28 U.S.C. § 1332(a). In the
action, Hannah alleges that the chicken he consumed at
Piccadilly on June 10, 2015 was spoiled and therefore the
cause of his severe symptoms. Piccadilly Holdings disputes
this as the cause of Hannah’s illness.
dispute now before the Court, however, is whether Hannah
timely filed his complaint against Piccadilly Holdings. Both
parties recognize that the Mississippi statute of limitations
for most tort actions is three years. They do not dispute that
Hannah dined at Piccadilly on June 10, 2015 and fell ill
beginning on June 11, 2015. The issue is whether the statute
of limitations to file a complaint began to run at the time
Hannah realized he was ill or at the time his injury was
judgment is appropriate when the movant can show that there
is “no genuine dispute as to any material fact,”
and consequently, the movant is entitled to a grant of
judgment as a matter of law. Fed. R. Civ. P. 56(a). If a
nonmovant wishes to avoid summary judgment, they must
identify admissible evidence in the record indicating a
disputed material fact. Id. at 56(c)(1). “Once
a summary judgment motion is made and properly supported, the
nonmovant must go beyond the pleadings and designate specific
facts in the record showing that there is a genuine issue for
trial. Neither ‘conclusory allegations’ nor
‘unsubstantiated assertions’ will satisfy the
nonmovant’s burden.” Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (quotation
marks and citations omitted).
Court views the evidence and draws reasonable inferences in
the light most favorable to the nonmovant. Maddox v.
Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir.
2011). But the Court will not, “in the absence of any
proof, assume that the nonmoving party could or would prove
the necessary facts.” McCallum Highlands, Ltd. v.
Wash. Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995),
as revised on denial of reh’g, 70 F.3d 26 (5th
jurisdiction in this case is based on diversity of
citizenship, the Court must apply Mississippi’s statute
of limitations for tort claims. Capital City Ins. Co. v.
Hurst, 632 F.3d 898, 902 (5th Cir. 2011). Mississippi
law is determined by looking to the decisions of the
Mississippi Supreme Court. Transcontinental Gas Pipe Line
Corp. v. Transportation Ins. Co., 953 F.2d 985, 988 (5th
of limitation normally run from the time of injury.
Weathers v. Metropolitan Life Ins. Co., 14 So. 3d
688, 692 (Miss. 2009) (citations omitted). Section 15-1-49(2)
of the Mississippi Code provides an exception to this general
rule. It states that “[i]n actions for which no other
period of limitation is prescribed and which involve latent
injury or disease, the cause of action does not accrue until
the plaintiff has discovered, or by reasonable diligence
should have discovered, the injury.” Miss. Code Ann.
§ 15-1-49(2). This is “the discovery rule.”
The Mississippi Supreme Court has cautioned that the
discovery rule “should only be applied ‘in
limited circumstances in  negligence and products liability
case[s] involving latent injury.’” PPG
Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47');">909 So. 2d 47,
50 (Miss. 2005) (citations omitted). Essentially, if the
injury is not latent, then the discovery rule is
inapplicable. Id. (citations omitted). A latent
injury is defined as one where the “plaintiff will be
precluded from discovering harm or injury because of the
secretive or inherently undiscoverable nature of the
wrongdoing in question . . . [or] when it is unrealistic to
expect a layman to perceive the injury at the time of the
wrongful act.” Id. (citations omitted).
plaintiff is not required to have “absolute certainty
nor an expert opinion to vest the right to a cause of
action.” Id. Rather, a court must look to a
complainant’s actions to determine whether they
“‘knew’ or ‘reasonably should have
known’ that [they] suffered an injury.”
Id. at 51. If based on the facts at hand, a
plaintiff knew or reasonably should have known of an injury,
then the injury is not considered latent. In certain