IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 7:03-CV-102-D

VS. §

 §

O’NEAL, INC., d/b/a O’NEAL, §

JONES & FELDMAN §

PHARMACEUTICALS, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this class action alleging personal injury and death claims

arising from the manufacture and distribution of E-Ferol Aqueous

Solution (“E-Ferol”), a pharmaceutical product administered

intravenously to premature infants between November 1983 and April

1984, defendants O’Neal, Inc. d/b/a O’Neal, Jones & Feldman

Pharmaceuticals (“OJF”), CVS Revco D.S., Inc. (“CVS”), and Retrac,

Inc. (“Retrac”) move for partial summary judgment. They maintain

that all wrongful death and survival act claims brought on behalf

of individuals who died before May 23, 2001 (i.e., two years before

this suit was filed), and all claims (whether from personal injury

or death) arising in Iowa or Tennessee, are time-barred.

Plaintiffs rely on the defense of fraudulent concealment to avoid

the time bar. For the reasons that follow, the court grants the

motion in part and denies it in part. The court also raises sua

sponte that the class certification decision should be

reconsidered, and it directs the parties to submit supplemental
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briefing on that question.

I

At the time E-Ferol was administered, Retrac was a wholly

owned subsidiary of CVS and was doing business as Carter-Glogau

Laboratories (“Carter-Glogau”). Carter-Glogau manufactured E-Ferol

for distribution by OJF as a vitamin E solution for intravenous

administration to premature infants. Marketed as an agent to

combat retrolental fibroplasia——a disease that causes impaired

vision or permanent blindness in premature infants——it was never

tested for safety, and it was falsely represented as being “FDA

Approved.” Many infants who received the drug died or suffered

serious health complications, and the drug was recalled in April

1984. Retrac d/b/a Carter-Glogau and OJF were later convicted of

multiple federal crimes, including, inter alia, unlawful

introduction of a drug that was not approved by the Food and Drug

Administration (“FDA”), with the intent to defraud or mislead. See

United States v. Hiland, 909 F.2d 1114, 1119 (8th Cir. 1990)

(affirming convictions). The plaintiff class consists of infants

who were administered E-Ferol, as well as the “parents, spouses,

children, guardians, and legal representatives . . . with direct or

derivative claims.” Klein v. O’Neal, Inc., 222 F.R.D. 564, 566

(N.D. Tex. 2004) (Buchmeyer, J.) (certifying class) (“Klein I”). 

Plaintiffs filed this action in May 2003, alleging claims for

negligence, breach of express warranty, breach of implied warranty,
1

Defendants move to strike certain summary judgment evidence.

Because the court has not relied on this evidence in deciding

defendants’ motion, it denies the motion as moot. Plaintiffs move

for leave to supplement the summary judgment record. Because the

proffered evidence would not affect the court’s analysis, the

motion is denied as moot.

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misrepresentation, and products liability. Defendants maintain

that all wrongful death and survival act claims brought on behalf

of individuals who died before May 23, 2001 (i.e., two years before

this suit was filed), and all claims (whether from personal injury

or death) arising in Iowa or Tennessee, are time-barred. In an

August 9, 2007 memorandum opinion and order, the court continued

consideration of defendants’ motion for summary judgment so that

plaintiffs could conduct discovery concerning fraudulent

concealment. Klein v. O’Neal, Inc., No. 7:03-CV-102-D, slip op. at

1 (N.D. Tex. Aug. 9, 2007). This discovery has been completed, and

the parties have filed supplemental briefing.1

II

Under Texas law, lawsuits based on an injury that resulted in

death must be brought within two years of the date of death. Tex.

Civ. Prac. & Rem. Code Ann. § 16.003(b) (Vernon 2002). This

applies to all such claims, regardless whether they arise inside or

outside the state. Tex. Civ. Prac. & Rem. Code Ann. § 71.031(a)(2)

(Vernon Supp. 2007); see also Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 496 (1941) (holding that federal court sitting in
2

Plaintiffs argue that a statute of limitations is

“substantive law” for choice-of-law purposes, and that it therefore

cannot govern the claims in this case that arise outside the state

of Texas. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818

(1985) (imposing constitutional restrictions on forum state’s right

to impose its own substantive law on claims arising outside state).

This argument is foreclosed by Supreme Court precedent and does not

warrant further discussion. See Sun Oil Co. v. Wortman, 486 U.S.

717, 722, 727-28 (1988) (holding that statute of limitations is

“procedural” for choice-of-law purposes——even though it is

substantive for Erie purposes——and reaffirming “long and

repeated[ ]” holding that “the Constitution does not bar

application of the forum State’s statute of limitations to claims

that in their substance are and must be governed by the law of a

different State.”).

3

They also briefly invoke the “discovery rule,” but this rule

does not apply to wrongful death and survival act claims. See

Moreno v. Sterling Drug, 787 S.W.2d 348, 349 (Tex. 1998).

4The parties do not dispute that Texas law governs the

application of fraudulent concealment to claims governed by the

Texas statute of limitations.

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diversity applies forum state’s choice-of-law rules).2

Accordingly, all claims in this case that are based on deaths

occurring before May 23, 2001 are time-barred, unless the

limitations period is tolled. 

Plaintiffs rely on the defense of fraudulent concealment to

avoid the limitations bar.3 Under Texas law, “[o]nce the defense

of limitations is conclusively established, and the plaintiff

resists summary judgment by asserting fraudulent concealment, the

burden is on the plaintiff to raise a fact issue on each element of

fraudulent concealment.” Malone v. Sewell, 168 S.W.3d 243, 251

(Tex. App. 2005, pet. denied) (citing Am. Petrofina, Inc. v. Allen,

887 S.W.2d 829, 830 (Tex. 1994)).4 Because plaintiffs will have
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the burden at trial of proving fraudulent concealment, defendants

can obtain summary judgment by pointing the court to the absence of

evidence to support this defense. See Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). Once defendants do so, plaintiffs must

go beyond their pleadings and designate specific facts showing

there is a genuine issue for trial. See id. at 324; Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam). An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for plaintiffs. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Plaintiffs’ failure

to produce proof as to any essential element renders all other

facts immaterial. Trugreen Landcare, L.L.C. v. Scott, 512

F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary

judgment is mandatory where the nonmoving parties (here,

plaintiffs) fail to meet this burden. Little, 37 F.3d at 1076.

III

“[W]hen a defendant has fraudulently concealed the facts

forming the basis of the plaintiff’s claim, limitations does not

begin to run until the claimant, using reasonable diligence,

discovered or should have discovered the injury.” KPMG Peat

Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750

(Tex. 1999). This is known as the doctrine of “fraudulent

concealment,” and it rests on the doctrine of equitable estoppel.

Malone, 168 S.W.3d at 251 (citing Mitchell Energy Corp. v.
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Bartlett, 958 S.W.2d 430, 439 (Tex. App. 1997, pet. denied)).

Fraudulent concealment is based on the principle “that fraud

vitiates whatever it touches.” Borderlon v. Peck, 661 S.W.2d 907,

909 (Tex. 1983). 

[A] party will not be permitted to avail

himself of the protection of a limitations

statute when by his own fraud he has prevented

the other party from seeking redress within

the period of limitations. To reward a

wrongdoer for his own fraudulent contrivance

would make the statute a means of encouraging

rather than preventing fraud.

Id. 

“The gist of fraudulent concealment is the defendant’s active

suppression of the truth or failure to disclose when the defendant

is under a duty to disclose.” Mitchell, 958 S.W.2d at 439. It

“requires actual knowledge by the defendant that a wrong has

occurred and a fixed purpose to conceal the facts necessary for the

plaintiff to know that it has a cause of action.” Vial v. Gas

Solutions, Ltd., 187 S.W.3d 220, 230 (Tex. App. 2006, no pet.)

(internal quotation marks omitted). “The elements of fraudulent

concealment are: (1) the existence of the underlying tort; (2) the

defendant’s knowledge of the tort; (3) the defendant’s use of

deception to conceal the tort; and (4) the plaintiff’s reasonable

reliance on the deception.” Malone, 168 S.W.3d at 251 (citing

Mitchell, 958 S.W.2d at 439). A defendant may conceal facts either

by “active misrepresentation” or “passive silence.” Santanna

Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890
3If fraud is not an element of the underlying tort (e.g., the

products liability claim), then defendants’ fraud necessarily is

distinct from that tort. 

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(Tex.App. 1997, pet. denied). A passive failure to disclose a fact

is fraudulent “only if the defendant has a duty to disclose that

fact.” Trustees of Nw. Laundry & Dry Cleaners Health & Welfare

Trust Fund v. Burzynski, 27 F.3d 153, 157 (5th Cir. 1994); see also

Mitchell, 958 S.W.2d at 439. But “affirmative misrepresentations

can support a fraudulent concealment defense . . . even in the

absence of a duty to disclose.” Santanna, 954 S.W.2d at 891. The

party asserting the fraudulent concealment defense bears the burden

of showing that the defendant was under a duty to make a

disclosure. Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974).

 IV

A

For purposes of defendants’ motion for partial summary

judgment, there is no dispute that, when defendants distributed the

product, they knowingly misrepresented E-Ferol as safe and

effective for intravenous use in premature infants. Defendants

maintain, however, that these misrepresentations are insufficient

to establish fraudulent concealment because they are not distinct

from the underlying tort. The court disagrees. 

Where the underlying tort involves fraud, the underlying fraud

itself is sufficient to toll the limitations statute.3

 See Ruebeck

v. Hunt, 176 S.W.2d 738, 739-40 (Tex. 1944) (tolling limitations
4

In their final reply brief, defendants cite Malone, 168

S.W.3d at 251, but their reliance is misplaced. In Malone the

court held that there was no fraudulent concealment because the

defendant had “asked [plaintiff] for assurances that she would not

sue her,” which was “the very opposite of . . . concealment.” It

did not question the principle that an underlying tort of fraud can

be sufficient to toll the limitations statute. See id.

Defendants’ reliance on Advent Trust Co. v. Hyder, 12 S.W.3d 534

(Tex. App. 1999, pet. denied), is also misplaced. Advent Trust

merely acknowledged that the existence of underlying fraud did not

itself toll the limitations period. See id. at 541-42. A

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period based solely on underlying tort of fraud) (“It is the

well-settled rule in this State that fraud prevents the running of

the statute of limitations until it is discovered, or by the

exercise of reasonable diligence it might have been discovered.”);

see also Computer Assocs. Int’l Inc. v. Altai, Inc., 918 S.W.2d

453, 455 (Tex. 1996) (“[W]here fraud is alleged, we have granted

the claimant the benefit of deferring the cause of action until the

claimant discovered or should have discovered the fraud.” (citing

Ruebeck, 176 S.W.2d at 739)). In Hobson v. Wilson, 737 F.2d 1

(D.C. Cir. 1984), a case on which defendants rely, the court

explained:

[the law] distinguishes between acts that are

self-concealing (such as frauds) and acts

where, absent a subsequent act of concealment,

only the perpetrator, but not the fact that a

cause of action might exist, would be unknown

(such as a burglary). In the former case,

concealment is established by the nature of

the act [and the statute is tolled

immediately]; in the latter case, additional

acts of concealment are required to trigger

the tolling doctrine.

Id. at 33.4
plaintiff must also show, for example, that he reasonably relied on

the fraud. Id.

5This same reasoning disposes of defendants’ argument that the

facts that they concealed were immaterial. Defendants’

misrepresentations prevented physicians from suspecting that EFerol caused the infants’ illnesses or deaths, which, in turn,

prevented parents from discovering that they had a cause of action.

The facts were clearly material.

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As discussed more fully below, a jury could reasonably infer

that defendants’ representations concerning the safety of E-Ferol

prevented many physicians from suspecting that the deaths of these

premature infants was due to the drug (as opposed to natural

causes), which, in turn, prevented their patients’ parents from

suspecting the same. Defendants’ deception thus concealed not

“only the perpetrator,” but the very “fact that a cause of action

might exist.” Hobson, 737 F.2d at 33. Accordingly, the court

concludes that a separate act of concealment was not necessary to

toll the limitations period.5

B

Defendants also maintain that, at the time the statements were

made, they lacked the requisite “actual knowledge” of the alleged

wrong. See Vial, 187 S.W.3d at 229 (“Fraudulent concealment

requires actual knowledge by the defendant that a wrong has

occurred[.]”). They aver that such knowledge requires specific

awareness of plaintiffs’ identities and injuries. The court

disagrees. 
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Fraudulent concealment is an equitable doctrine based on the

premise that “fraud vitiates whatever it touches.” Borderlon, 661

S.W.2d at 909. The defense is established where a defendant knows

it has committed a wrong, intends to conceal that wrong, and

successfully does so. See Shah v. Moss, 67 S.W.3d 836, 841 (Tex.

2001). In some circumstances, a defendant who knows he has

committed a wrong will necessarily know the identity of the person

harmed. But in the typical mass tort case, it would be virtually

impossible for a defendant to know the identity of each individual

who has been harmed. To require such knowledge would essentially

eliminate the availability of the fraudulent concealment defense

against a limitations defense in a mass tort lawsuit. Texas law

does not support this result. See Borderlon, 661 S.W.2d at 909.

(“[A] party will not be permitted to avail himself of the

protection of a limitations statute when by his own fraud he has

prevented the other party from seeking redress within the period of

limitations. To reward a wrongdoer for his own fraudulent

contrivance would make the statute a means of encouraging rather

than preventing fraud.”). 

Defendants rely on Bridges v. Metabolife International, Inc.,

119 Fed. Appx. 660 (5th Cir. 2005), an unpublished Fifth Circuit

decision that is not precedential except in limited circumstances

not present here. See 5th Cir. R. 47.5. In relevant part, Bridges

addressed the question whether fraudulent concealment tolled the
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Texas statute of limitations that otherwise barred the plaintiff’s

claim against the defendant, Metabolife International, Inc.

(“Metabolife”), a marketer of a nutritional supplement. To decide

this question, the panel addressed whether Metabolife had a duty to

disclose product safety information that it had not disclosed until

years after the plaintiff had suffered a stroke from using the

product. Id. at 663. 

The plaintiff argued that because Metabolife had voluntarily

disclosed certain information to government agencies and had made

representations to the public, it had a duty to make full and

accurate disclosures to the public as information became available.

He maintained that Metabolife’s failure to make full and accurate

disclosures prevented him from discovering his cause of action

within the limitations period. The panel disagreed. It concluded

that the plaintiff did not meet the first prong of fraudulent

concealment because he did not demonstrate “that Metabolife had

actual knowledge of his injury.” Id. It then held that the

plaintiff had failed to meet his burden of showing that Metabolife

owed a fiduciary duty to him, which would have imposed on it a duty

to fully and honestly disclose. Id. Without a duty to disclose,

mere concealment was not fraudulent concealment for purposes of

tolling the statute of limitations. Id. at 663-64.

Defendants seize on the first statement——that Metabolife

lacked “actual knowledge of [the plaintiff’s] injury”——to contend
6

Defendants also cite Cantrell v. Wyeth, 2003 WL 22251079

(N.D. Tex. Sept. 19, 2003) (Fish, C.J.). In the court’s August 9,

2007 memorandum opinion and order, however, it explained why

defendants’ reliance on Cantrell was misplaced. See Klein, slip

op, 11-12 n.3. The court need not do so again here.

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that they are entitled to summary judgment on the same basis. But

even if this statement should be viewed as a holding that is

independent of the second that follows, this court must

respectfully decline to follow it in this Erie context because it

misstates Texas law. Earlier in the opinion, the Bridges panel

correctly stated that “[t]o show entitlement to the estoppel

effect, the plaintiff must show: (1) the defendant had actual

knowledge of the wrong . . . .” Id. at 663 (emphasis added)

(quoting Casey v. Methodist Hosp., 907 S.W.2d 898, 904 (Tex. App.

1995)). In other words, it is the defendant’s actual knowledge of

the wrong that controls, not the defendant’s actual knowledge of

the plaintiff’s injury. In fact, all three components of the

fraudulent concealment test are formulated in terms of “the wrong,”

not the plaintiff’s injury. See Casey, 907 S.W.2d at 903. Under

Texas law, it is sufficient that the defendant knew it has wronged

a person or group of persons, regardless whether it has identified

the individuals involved.6

C

The court also rejects defendants’ contention that, because

their misrepresentations were made to third parties (physicians and

hospitals), plaintiffs cannot establish their “reliance” on these
7

In a footnote, defendants cite cases that arise under

Tennessee law and that address the question of when a defendant

must disclose the existence of an underlying tort (rather than

remain silent). See Saltire Indus., Inc. v. Waller, Lansden,

Dortch & Davis, PLLC, 491 F.3d 522, 527 (6th Cir. 2007); Patten v.

Standard Oil Co. of La., 55 S.W.2d 759, 761 (Tenn. 1933). If

defendants intend to argue that they had no duty to disclose their

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statements. To hold that a party may fraudulently conceal a tort

with impunity, simply by directing its fraudulent conduct toward

third parties on whom plaintiffs would rely (such as physicians),

would violate the equitable principles on which the fraudulent

concealment defense rests. Moreover, in analogous contexts,

“[c]ourts have held that indirect reliance is sufficient to support

a fraud claim where the misrepresentation was made to an

intermediary.” See, e.g., Ameristar Jet Charter, Inc. v. Signal

Composites, Inc., 2001 WL 1172184, at *5 (N.D. Tex. Sept. 28, 2001)

(Lynn, J.) (discussing “reliance” for purposes of fraud claim).

Perceiving no reason why these principles should not apply here,

the court concludes that plaintiffs can establish “reliance” for

purposes of their fraudulent concealment defense by proving that

defendants deceived physicians who ordered E-Ferol administered,

and that this, in turn, prevented plaintiffs from suspecting that

the illnesses and deaths in question did not stem from natural

causes. See id. Because the question whether plaintiffs have in

fact established this reliance is closely related to the question

whether they exercised “reasonable diligence,” it will be discussed

below.7

 
tort because they had no relationship with plaintiffs, this point

is inapposite. A jury could reasonably find that defendants did

not simply remain silent about their conduct; they affirmatively

misrepresented the truth. Under such circumstances, a plaintiff

need not establish a duty to disclose. See, e.g., Santanna, 954

S.W.2d at 890-91 (“[A]ffirmative misrepresentations can support a

fraudulent concealment defense to a statute of limitations bar even

in the absence of a duty to disclose.”).

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V

A

Despite the general availability of the fraudulent concealment

defense to plaintiffs, “[t]he estoppel effect of fraudulent

concealment ends when a party learns of facts, conditions, or

circumstances which would cause a reasonably prudent person to make

inquiry, which, if pursued, would lead to discovery of the

concealed cause of action.” Borderlon, 661 S.W.2d at 909. In

other words, the limitations period will begin to run when the

plaintiff would discover, through the use of “reasonable

diligence,” that he has a cause of action. KPMG Peat Marwick, 988

S.W.2d at 750. “[T]he dispositive inquiry is when the plaintiff

knew enough that a reasonable person in the plaintiff’s place would

disbelieve the defendant’s denial of improper conduct. At that

point, reliance becomes unreasonable, and the tolling effect ends.”

Mitchell, 958 S.W.2d at 442. 

“Ordinarily, what constitutes reasonable diligence to discover

fraud is a question of fact for the jury. Unless the evidence is

such that reasonable minds may not differ as to its effect, the
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question as to whether a party has exercised diligence in

discovering fraud is for the jury.” Ruebeck, 176 S.W.2d at 739

(citations omitted); see also, e.g., Harding v. Lewis, 133 S.W.3d

693, 698 (Tex. App. 2003, no pet.) (similar). 

B

Applying these principles, the court dismisses the claims of

these plaintiffs who learned——more than two years before the

lawsuit was filed——that E-Ferol (or an unnamed “Vitamin E drug”)

might have caused the illnesses and/or deaths in question. At that

moment, any reliance on defendants’ representations about E-Ferol’s

safety became unreasonable, and the tolling effect on the

limitations statute ceased. See Mitchell, 958 S.W.2d at 442.

Proof of fraudulent concealment requires a showing that defendants’

concealing acts prevented plaintiffs from knowing that they had a

cause of action, not, for example, that a lawyer’s erroneous advice

did so, or that the concealment was due to a parent’s mistaken

belief that E-Ferol would not have been administered to a

particular child. See, e.g., Ps. Supp. App. 225-30 (declarations

of Douglas Middleton and Jewell Middleton Chandler); id. at 308-312

(declarations of Conrado and Christine Marie Saucedo).

Accordingly, the claims of these plaintiffs are dismissed. This

includes Russell and Virginia Cudmore, see Ps. Supp. App. 57-60

(declarations) (averring that they were informed by the doctor that

their child’s death was possibly due to vitamin E, that they saw
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“Vitamin E Toxicity” on autopsy report, that they saw newspaper

headlines concerning a vitamin E drug, but that they nevertheless

did not make connection that drug could have caused child’s death);

Lisa Ann Hunsicker Decl., Ps. Supp. App. 71 (stating that she was

told in hospital that child’s severe stomach swelling was due to

vitamin E that he had received); Mary Katherine and Michael Jackson

Decls., Ps. Supp. App. 152-55 (stating that they learned at

daughter’s September 1993 funeral that she had been administered a

“drug that killed many babies”); Wanda Lee Eldridge Pennington and

Russell Eldridge Decls., Ps. Supp. App. 219-224 (stating that they

heard that babies had died from bad vitamin E formula and consulted

two different attorneys about possibility of lawsuit, but were

advised that they had no claim); Douglas E. Middleton and Jewell

Middleton Chandler Decls., Ps. Supp. App. 225-30 (stating that they

saw news report about E-Ferol and thought this might have applied

to their case, that they consulted an attorney about it, but that

they did not pursue claim because attorney advised that E-Ferol did

not cause death); Linda Darlene Ogle Myers Decl., Ps. Supp. App.

231-33 (stating that nurse told her she thought “babies might have

become ill from a new type of vitamin E that they were using”);

Cecily Jane Clark Decl., Ps. Supp. App. 299-301 (stating that she

read article discussing E-Ferol and infant deaths at local

hospital, believed it to be specifically discussing death of her

own child, but was convinced by analysis of interviewed hospital
- 17 -

official that drug did not cause her child’s death); and Christine

Marie and Conrado Saucedo Decls., Ps. Supp. App. 308-312 (stating

that they had read an article about E-Ferol’s harming premature

babies at their hospital, but concluded that it did not apply to

them because their child was not premature). A reasonable jury

could only find that these plaintiffs learned of facts, conditions,

or circumstances that made unreasonable any continued

reliance——direct or indirect——on defendants’ misrepresentations. 

C

As to the remaining claims, the court concludes that

plaintiffs have raised a genuine issue of fact concerning their

reliance and reasonable diligence. The record supports an

inference that their physicians believed defendants’

misrepresentations regarding E-Ferol and therefore did not suspect

that the drug had caused the illnesses and deaths in question (as

opposed to natural causes). Given that the physicians did not

suspect an unnatural cause of death, and the children had already

been at risk (in varying degrees) due to prematurity or other

complications, a jury could reasonably find that plaintiffs were

not unreasonable in concluding, without further inquiry, that the

causes of death were natural. 

The court finds unavailing defendants’ arguments that

plaintiffs were unreasonable as a matter of law. First, defendants

maintain that, as a matter of law, all plaintiffs must have been
8

Similarly, the court disagrees with defendants’ argument that

all claims concerning children who died after issuance of the

recall notice should be dismissed. A jury could reasonably find

that, just as the parents had little reason to suspect that

anything tortious had occurred at the time their children became

ill, they also had little reason to suspect this at the time of

death (and thus no reason to reinvestigate the original causes of

illness). 

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aware of the news coverage of E-Ferol after the drug was recalled.

But plaintiffs have adduced summary judgment evidence that (other

than the plaintiffs who fall within the category discussed above)

they were not aware, and the court declines to hold, as a matter of

law, that a reasonably diligent person would have been. A jury

could reasonably find that plaintiffs were not given a reason to

monitor the news for such reports, and that “reasonable diligence”

did not require that they do so.8 

The cases that defendants cite——which in any event do not

address Texas law——are distinguishable. In United Klans of America

v. McGovern, 621 F.2d 152 (5th Cir. July 9, 1980) (per curiam), the

plaintiff itself was the object of the media reports in question

and had been personally notified of the complained-of government

conduct. See id. at 153-55 (reasoning that plaintiff should have

known of government’s concerted effort against it because there was

significant news coverage of the effort, a published Senate report

about it, and Klan president had been personally notified about

it). Similarly, the plaintiffs in In re Beef Industry Antitrust

Litigation, 600 F.2d 1148 (5th Cir. 1979), were sophisticated
- 19 -

members of the industry who were affected by defendant’s wrongdoing

and would have been expected to know about a lawsuit that was

widely reported in their trade publications. See id. at 1153,

1170.

Defendants also argue that any concealment of their tort ended

in April 1984, when they sent urgent recall notices to doctors,

hospitals, and wholesalers. Under principles already explained,

however, in order for the limitations period to have commenced at

that time, defendants’ disclosure must have been effective to make

a reasonably diligent person aware of “facts, conditions, or

circumstances which would cause . . . [that] person to make

inquiry, which, if pursued, would lead to discovery of the

concealed cause of action.” Borderlon, 661 S.W.2d at 909. Because

the recall notices were not sent to plaintiffs, the court declines

to hold, as a matter of law, that a reasonably diligent person

would have learned of them.

 The court recognizes that, in the “duty to warn” context, “a

manufacturer or supplier may, in certain situations, depend on an

intermediary to communicate a warning to the ultimate user of a

product.” Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 591 (Tex.

1986). But even then, 

the mere presence of an intermediary does not

excuse the manufacturer from warning those

whom it should reasonably expect to be

endangered by the use of its product. The

issue in every case is whether the original

manufacturer has a reasonable assurance that
- 20 -

its warning will reach those endangered by the

use of its product.

Id. (emphasis added). Thus assuming arguendo that these analogous

principles apply to this case, there is no indication that

defendants had “reasonable assurance” that their recall efforts

would be communicated to affected consumers. For example, there is

no suggestion that the hospitals and physicians had committed (or

had a legal duty) to contact the parents, guardians, or legal

representatives of all prior patients who had been administered the

drug. Therefore, defendants cannot rely on disclosures made to

doctors, hospitals, and wholesalers. 

Defendants next argue that plaintiffs should have taken

certain investigative steps, such as obtained and examined the

children’s medical records, probed medical staff for answers, or

requested an autopsy. Although a jury could reasonably find that

such steps were reasonably prudent in the context of a particular

case, the court declines to hold, as a matter of law, that such

steps were required of all plaintiffs. An illustrative claim is

that of Barbara Kelly Bennett (“Bennett”), whose child was born 14

weeks prematurely and died 22 days later. Bennett was told by

medical staff that the cause of death was cardiac arrest, possible

sepsis, and extreme prematurity. See Ps. Supp. App. 23 (Bennett

Decl.). In light of these circumstances (i.e., extreme prematurity

and concomitant health complications), a reasonable jury could find

that Bennett had no reason to suspect that the death was due to
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anything but natural causes, and thus no reason to make further

inquiry.

VI

Although the court declines to hold that plaintiffs were

unreasonable as a matter of law, it also finds that there are

material differences in the factual circumstances of each claim

that could affect the jury’s analysis of the question. For

example, the child of Monica M. Martinez (“Martinez”) was born

prematurely and was immediately admitted to the neonatal intensive

care unit. See id. at 20 (Martinez Decl.). Martinez avers that

her child “was doing fine, just like a normal baby” by the fourth

day of his life, but that he soon took a dramatic turn for the

worse. His skin color changed, he became extremely swollen, and he

died. Id. Like Bennett, she did not inquire further into her

child’s death, but unlike Bennett, she was never given an

explanation for it. See id. Although a reasonable jury could

still find that additional inquiry was not required under these

circumstances, the dramatic worsening of the child’s physical

condition, coupled with the absence of any medical explanation for

death, makes it a closer question. In short, the factual

variations between the claims of Bennett and Martinez might lead to

different dispositions of the “reliance” and “reasonable diligence”

issues. 

This class action was certified on the premise that “[c]ommon
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questions predominate over questions affecting individual class

members.” Klein I, 222 F.R.D. at 568. At the time of

certification, it may not have been apparent to Judge Buchmeyer

that a fraudulent concealment defense would be at issue. See id.

(analyzing commonality of plaintiffs’ underlying tort claims

without addressing fraudulent concealment or “reasonable

diligence”). After further motion briefing, however, it now

appears that individualized fact issues predominate with respect to

the reliance and reasonable diligence inquiries.

“The district judge must define, redefine, subclass, and

decertify as appropriate in response to the progression of the case

from assertion to facts.” Richardson v. Byrd, 709 F.2d 1016, 1019

(5th Cir. 1983). “When appropriate, a class may be divided into

subclasses that are each treated as a class under [Rule 23].” Fed.

R. Civ. P. 23(c)(5). 

Accordingly, within 30 days of the date this memorandum

opinion and order is filed, the parties must submit supplemental

briefing that addresses whether the class certified in this case

should be decertified or modified in some respect. After the court

reviews the supplemental briefing, it will decide whether to invite

opposition responses.
9Plaintiffs point out that Texas’ “borrowing statute” did not

take effect until 1997, and they suggest that Texas law does not

allow its application to claims arising beforehand. The court

disagrees. 

In Owens Corning v. Carter, 997 S.W.2d 560 (Tex. 1999), the

Texas Supreme Court addressed the question whether applying the

“borrowing statute” to Alabama plaintiffs whose asbestos claims

accrued under Texas law, but were not yet barred when the statute

took effect on May 29, 1997, violated various Texas and United

States constitutional provisions. The court held that it did not.

First, the court concluded that the statute was not

unconstitutional under Tex. Const. Ann. art. I, § 16, despite the

absence of a grace period that afforded a reasonable time or fair

opportunity to preserve a claimant’s rights under the former law.

It reasoned that considerations of fair notice, reasonable

reliance, and settled expectations play a prominent role when,

inter alia, a state shortens an existing statute of limitations for

claims arising in that state, thereby disrupting settled

expectations and extinguishing accrued causes of action. But in

this case, the Alabama plaintiffs failed to sue within the time

allotted by Alabama law——the state where they resided and where

their claims arose. Because they brought suit in Texas to avoid

Alabama’s time bar, such concerns played a minimal role and did not

justify applying a grace period. Id. at 572-73. The court also

noted that the borrowing statute did not significantly change

existing law, both state’s statutes of limitations remain unchanged

with respect to claims arising in each state, and the borrowing

statute simply provided that the statute of limitations of the

state in which the wrongful act, neglect, or default occurred must

be satisfied. It pointed out that requiring a grace period for

otherwise time-barred claims would defeat the very purpose of the

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VII

Defendants also move for partial summary judgment as to nondeath claims arising in Tennessee. They maintain that these claims

are time-barred under Tennessee’s statute of repose. See Tex. Civ.

Prac. & Rem. Code Ann. § 71.031(a)(3) (providing that, in addition

to complying with Texas statute of limitations, claims arising in

another state must comply with that state’s time limits for filing

suit).9 Under the governing statute of repose, the Tennessee
borrowing statute, and that a plaintiff should not be able to gain

greater rights than he would have had in the state where the cause

of action arose, and where he lived, simply by bringing suit in

Texas. Id. at 573. 

The court next rejected the contention that applying the

borrowing statute violated the open courts provision of the Texas

Constitution, Tex. Const. Ann. art. I, § 13. Considering the

general purpose of the statute and the extent to which the

litigant’s right was affected, the court reasoned that the claim at

issue was an Alabama plaintiff’s personal injury claim arising in

Alabama, and the right to pursue that claim was not unreasonably

abrogated by a borrowing statute when the right remained the same

under Alabama law as it had before, and the only right being

restricted was the right to pursue the claim in Texas after it was

time-barred in Alabama. Id. at 574. Moreover, it was within the

Legislature’s authority to make reasoned adjustments in the legal

system, such as by precluding plaintiffs from gaining greater

rights in Texas than they would have had in the state where the

claim arose. Id. at 574.

Finally, the court held that the borrowing statute did not

violate the Privileges and Immunities Clause of Article IV of the

United States Constitution, relying on the United States Supreme

Court’s decision in Canadian Northern Railway v. Eggen, 252 U.S.

553 (1920), and rejecting the plaintiffs’ contention that Canadian

Northern was inapplicable because, unlike Texas, Alabama did not

apply the discovery rule. Id. at 575-76.

Applying Owens Corning to the present case, the court discerns

no basis to conclude that the borrowing statute does not apply to

the claims of non-Texas plaintiffs or that it would be

unconstitutional to apply the statute to those claims.

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plaintiffs were required to file suit within ten years of the date

E-Ferol was purchased, or “within a period of one (1) year after

attaining the age of majority,” whichever was later. Tenn. Code

Ann. § 29-28-103(a) (2008); Holt ex. rel. Holt v. Hypro, A Div. of

Lear Siegler, Inc., 746 F.2d 353, 354 (6th Cir. 1984). This means

that the latest a Tennessee plaintiff could have filed timely suit
10The latest that E-Ferol was administered was April 1984.

Accordingly, the youngest plaintiff in this case would have turned

18 in April 2002. Applying the one-year exception for minors, that

plaintiff would have had until April 2003 to file suit.

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is April 2003.10 This lawsuit was not filed until May 2003.

Accordingly, all Tennessee-based claims are time-barred unless an

exception applies.

Plaintiffs again rely on the fraudulent concealment defense,

maintaining that this defense applies to Tennessee’s statute of

repose just as it applies to its statutes of limitations. See,

e.g., Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992) (holding

that fraudulent concealment may toll statute of limitations). The

court disagrees.

 The Tennessee Supreme Court has explained the distinction

between statutes of repose and statutes of limitations:

[s]tatutes of repose operate differently than

statutes of limitation, primarily because

statutes of repose typically begin to run with

the happening of some event unrelated to the

traditional accrual of the plaintiff’s cause

of action. Because a plaintiff’s cause of

action can be eliminated by a statute of

repose even before it accrues, statutes of

repose have been said to extinguish both the

right and the remedy[.]

Penley v. Honda Motor Co., 31 S.W.3d 181, 184 (Tenn. 2000)

(internal citations omitted) (discussing Tenn. Code Ann. § 29-28-

103(a), the same statute of repose at issue here). “[T]he statute

of repose [i]s “an outer limit or ceiling superimposed upon the

existing statute of limitations.” Id. (quoting Harrison v.
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Schrader, 569 S.W.2d 822, 826 (Tenn. 1978) (internal brackets

omitted)). Its “language compels the conclusion that [the

legislature] intended for the ten-year repose period to be an

absolute bar beyond which no products liability cause of action

could exist.” Id. at 185. Courts are not free to apply exceptions

that have not been expressly provided within the statute. See id.

(refusing on this basis to imply exception for mental incompetency)

(“Section 29-28-103 originally contained one express exception to

the general ten-year limitations period [for minors], and the

General Assembly has twice amended the statute since 1978 to

include other express exceptions. The failure of the General

Assembly to expressly include any provision exempting persons of

unsound mind from the statute of repose strongly indicates its

desire not to have such an exemption.”). 

Although the statute of repose governing medical malpractice

cases contains an exception for fraudulent concealment, there is no

such exception for cases involving injury by products, such as

plaintiffs allege in the present case. Id. at 184; compare Tenn.

Code Ann. § 29-28-103 (governing products liability) with Tenn.

Code Ann. § 29-26-116 (governing medical malpractice).

Accordingly, the Tennessee claimants are precluded from invoking

the fraudulent concealment doctrine, and their non-death claims are

time-barred. See Damron v. Media Gen., Inc., 3 S.W.3d 510, 512

(Tenn. Ct. App. 1999) (holding that Tennessee law does not allow
11In the court’s August 9, 2007 memorandum opinion and order,

it did not consider the specific application of this defense to

Tennessee’s statutes of repose.

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fraudulent concealment exception to § 29-28-103); Greene v. Brown

& Williamson Tobacco Corp., 72 F.Supp.2d 882, 888 (W.D. Tenn. 1999)

(same).11

VIII

Defendants also move for summary judgment with respect to the

single claim arising in Iowa. The parties agree that the same

principles of fraudulent concealment that govern the Texas cases

apply to this claim, and they raise the same arguments. Because

the Iowa plaintiff adduces evidence that she had no knowledge about

receiving E-Ferol until after this lawsuit was filed, see Ps. Supp.

App. 343 (Lori Ann Schueller Decl.), and for the reasons discussed

above, the court denies summary judgment as to this claim.

* * *

Accordingly, for the reasons explained, the court grants in

part and denies in part defendants’ December 15, 2006 motion for

partial summary judgment, and it directs that the parties submit

supplemental briefing on whether the class certified in this case

should be decertified or modified in some respect.

SO ORDERED.

May 22, 2008.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE