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Plaintiff does not dispute defendants’ recital of the

relevant facts, or defendants’ assertion that Virginia law

applies to this case, or that Virginia’s two-year limitations

period governs – and, absent tolling, precludes – her claims.

ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

IN RE: PHENYLPROPANOLAMINE

(PPA) PRODUCTS LIABILITY 

LITIGATION,

______________________________

MDL NO. 1407

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT

This document relates to:

Casey v. Ivax Corp., C02-2025

This matter comes before the court on a motion for summary

judgment by IVAX Corporation, IVAX Pharmaceuticals, Inc., f/k/a/

Zenith Goldline Pharmaceuticals, Inc., and Zenith Goldline

Shreveport, Inc. (collectively “defendants”). Having considered

the parties’ briefs filed in support of and opposition to this

motion, the court finds and rules as follows.

The only dispute in this motion is whether the court should

toll Virginia’s two-year statute of limitations – which would

otherwise preclude plaintiff’s recovery – under Va. Code Ann. §

8.01(D).1 That statute provides, in relevant part,

When the filing of an action is obstructed by a defenCase 2:02-cv-02025-BJR Document 21 Filed 05/11/05 Page 1 of 4
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ORDER

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dant’s . . . (ii) using any other direct or indirect

means to obstruct the filing of an action, then the

time that such obstruction has continued shall not be

counted as any part of the period within which the

action must be brought.

Va. Code Ann. § 8.01(D). Plaintiff argues that her claims fall

under this exception, and relies on assertions in her complaint

that defendants:

conspired and/or acted in concert to delay the removal

of the preparations containing PPA from the market

place . . . by, inter alia, suppressing or concealing

knowledge of the grave dangers from the consuming

public and others and/or suppressing the publication of

articles by scientists who held views and opinions that

were adverse to defendants’ interests. 

Casey Complaint, ¶ 25. The complaint also alleges that “[w]ell

before November, 2000, Pharmaceutical Defendants had actual

knowledge that PPA made its product unreasonably dangerous.” Id.

at 35. 

In support of plaintiff’s proposition that defendants’

alleged fraudulent concealment triggers a tolling of the limitations period in this case, plaintiff string-cites a number of

Virginia cases that analyze the tolling statute. Plaintiff

asserts that a “recitation of the particular facts and circumstances of the Virginia cases as they apply to the instant case

is not necessary [] given the highly deferential Summary Judgment

standard of review conferred upon Plaintiff.” Plaintiff’s Brief

at 7.

Plaintiff overstates the degree of deference afforded her. 

Defendants’ motion shifts the burden to plaintiff to submit

evidence supporting each element of her claim. Celotex Corp. v.

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ORDER

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Catrett, 477 U.S. 317, 325 (1986). Plaintiff has failed to

produce any evidence whatsoever in response to defendants’ motion

for summary judgment, merely reasserting the allegations in her

complaint. This response is grossly insufficient. The summary

judgment rule itself provides “[w]hen a motion for summary

judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials

of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue

for trial. If the adverse party does not so respond, summary

judgment, if appropriate, shall be entered against the adverse

party.” Fed. R. Civ. P. 56(e) (emphasis added). For this reason

alone, defendants’ motion should be granted.

Even if plaintiff had adduced evidence supporting her

allegations, however, Virginia courts have routinely interpreted

the tolling statute narrowly, holding that "[c]onstructive fraud

is not such as will toll the running of the statute of limitations .... A defendant must intend to conceal the discovery of

the cause of action by trick or artifice and must have thus

actually concealed it from the plaintiff in order for the exception to apply." Mid-Atlantic Business Communications, Inc. v.

Virginia Dept. of Motor Vehicles, 606 S.E.2d 835, 839 (Va.

2005)(citations omitted). More, “[t]he character of fraud necessary to toll the statute must be of a variety involving moral

turpitude.” Resolution Trust Corp. v. Walde, 856 F.Supp. 281,

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ORDER

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286 (E.D. Va. 1994)(citations omitted). According to the law, a

plaintiff must prove the element of intent not by a mere preponderance, but by clear and convincing evidence. Id.

Plaintiff’s allegations – even if supported – would fail to

meet this narrow standard. Plaintiff alleges only that defendants

acted to delay the removal of the PPA-containing products from

the market. Nowhere in her complaint does she allege an intent to

conceal the cause of action. The materiality of the distinction

between the two allegations is emphasized by the court in Resolution Trust Corp. v. Walde, which found that the defendants had

“made the decisions for compelling business reasons wholly

unrelated” to plaintiff’s claims. 856 F.Supp. at 286. 

For the foregoing reasons, the court finds that plaintiff

has failed to establish a genuine issue of material fact for

trial, and that defendants are entitled to judgment as a matter

of law. Defendants’ motion for summary judgment is therefore

GRANTED. This case is hereby dismissed.

 DATED at Seattle, Washington this 11th day of May, 2005.

ABARBARA JACOBS ROTHSTEIN

 UNITED STATES DISTRICT JUDGE

Case 2:02-cv-02025-BJR Document 21 Filed 05/11/05 Page 4 of 4