Hughes v. Fresenius Medical Care Holding, Inc. et al

Filing 61

Judge Douglas P. Woodlock: ORDER entered. MEMORANDUM AND ORDER entered granting in part and denying in part (entry 721 in case # 13md2428 ) Motion to Dismiss to provide the parties with a general framework to address dispositive motions in the cases to which that framework is applicable.(adminn, )

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

IN RE: FRESENIUS GRANUFLO/
NATURALYTE DIALYSATE
PRODUCTS LIABILITY LITIGATION

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)
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MDL NO. 13-02428-DPW

This Order Relates To:
All Cases Involving the
Prescription, Purchase or Use
of Granuflo/Dialysate Products
In the State of Mississippi 1

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)
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)

MEMORANDUM AND ORDER
January 2, 2015
In the motion to dismiss now before me, certain of the
defendants, 2 whom I will refer to collectively as FMCNA, move to
dismiss as being filed outside of the statute of limitations one
hundred twenty-seven cases involving plaintiffs alleging injury
in Mississippi following receipt of dialysis treatment.
I. BACKGROUND
A.

Factual Background
Plaintiffs in this multidistrict litigation (MDL) allege

that injury or death was suffered as a result of the use of
NaturaLyte and GranuFlo, two products designed, manufactured,
1

The list of the cases in which the motion is formally made is
attached to defendants’ Memorandum, MDL No. 722 as Exhibit 1; it
is attached hereto as APPENDIX A.
2
Fresenius Medical Care Holdings, Inc. d/b/a Fresenius Medical
Care North America, Fresenius USA, Inc., Fresenius USA
Manufacturing, Inc., Fresenius USA Marketing, Inc., and
Fresenius USA Sales, Inc.
1

labeled, and distributed by FMCNA.

These products were used

during hemodialysis for patients with renal failure.

Dialysis

is a procedure to remove waste products from the blood of a
patient whose kidneys have failed and can no longer serve this
important function.

Plaintiffs allege that due to the use of

these products, there was an unexpectedly high level of
bicarbonate in their blood and this increased their risk of
cardiopulmonary arrest or sudden cardiac arrest.

The plaintiffs

say injuries, including cardiac arrest and death, were suffered
after treatment with these products.
The cases in this MDL share common factual questions,
including whether GranuFlo and NaturaLyte were defectively
designed or manufactured, whether FMCNA knew or should have
known of the risks, and whether FMCNA provided adequate
instructions and warnings.

Plaintiffs allege (1) strict

liability, (2) negligent failure to warn, (3) negligent design,
(4) negligence, (5) negligent misrepresentation, (6) breach of
implied warranty of merchantability, (7) breach of implied
warranty of fitness for a particular purpose, (8) breach of
express warranty, (9) fraud, (10) violation of consumer
protection laws, (11) loss of consortium, (12) wrongful death,
and (13) a survival action on behalf of the decedent’s estate.
The specific plaintiffs at issue in this motion to dismiss
were either patients who underwent dialysis using GranuFlo or
2

NaturaLyte in Mississippi and suffered injury, or they are
residents of Mississippi bringing suit on behalf of a decedent
who suffered cardiac arrest or other injury after undergoing
dialysis in Mississippi and died.

Each of the one hundred

twenty-seven cases at issue in this motion was filed over three
years after the injuries or deaths alleged in the complaint. 3
B.

Procedural Background
On March 29, 2013, the Judicial Panel on Multidistrict

Litigation (“JPML”) ordered the transfer of numerous civil
actions against FMCNA concerning its GranuFlo and NaturaLyte
products to this court for purposes of pretrial proceedings.
This multidistrict litigation—styled by the JPML as In re:
Fresenius GranuFlo/Naturalyte Dialysate Products Liability
Litigation, MDL No. 2428—has since grown to about 2,500 cases
and continues to grow.
The initial cases were filed either in various federal
district courts and then transferred to this MDL, or were
initially filed in a state court, removed to a corresponding
federal court, and then transferred to the MDL.
3

On February 3,

The full universe of cases to which these rulings will apply
remains undefined because cases that may be affected continue to
be filed in this MDL. As will become clear, I outline in this
Memorandum and Order the broad principles governing summary
judgment in cases having a Mississippi origin. Based upon these
broad principles, I will look to the parties to identify those
cases which may be appropriate for definitive and case specific
summary judgment practice.
3

2014, I adopted Case Management Order number seven (“CMO-7”) as
agreed to by the Plaintiffs Executive Committee and by the
defendants.

The stated purpose of CMO-7 was to “promote

efficiency and to eliminate the delays typically associated with
the ‘tag-along’ transfer of cases” to this court by the JPML.
CMO-7 created a procedure by which plaintiffs could file
their cases directly into the MDL without first being
transferred through the JPML.

The order stated that a single

Master Complaint was deemed pled against the defendants in all
cases already filed or that would be filed in this MDL.

CMO-7

required each plaintiff, regardless of whether a complaint had
already been filed, also to file a Short Form Complaint.

The

Short Form Complaint that all plaintiffs were required to file
contained a check box for whether the plaintiff wanted to chose
Massachusetts as the “home forum,” and a place to write in an
alternate district that would be appropriate if the plaintiff
did not want to choose Massachusetts.
Of the one hundred twenty-seven cases at issue in this
motion, one hundred and seven had been filed before the adoption
of CMO-7 and were transferred into this MDL by the JPML.

One

hundred and six were filed directly in Mississippi and then
transferred to this MDL and one case was filed in Massachusetts
and assigned to the MDL.

Pursuant to CMO-7, those plaintiffs

adopted a “Master Complaint” filed by the Plaintiffs’ Executive
4

Committee and the Plaintiffs’ Steering Committee by filing their
Short Form Complaint.

Some of those plaintiffs chose

Massachusetts as their “home forum” in the Short Form Complaint,
while others chose Mississippi.
Another twenty cases have been “direct filed” in the MDL
pursuant to the procedure in CMO-7.

Of the direct filed cases,

eleven chose Massachusetts as the “home forum” in the Short Form
Complaint and nine chose Mississippi as the “home forum.”
FMCNA has filed specific answers to the complaints in some
but not all of the cases at issue here, although the Master
Answer is deemed filed in all of those cases.
II. ANALYSIS
A.

Standard of Review
As a formal matter, the procedural posture of each of these

cases controls the applicable Federal Rules of Civil Procedure
(a) for cases in which FMCNA has already filed a specific
answer, the proper characterization of the motion is as one for
judgment on the pleadings pursuant to Rule 12(c); (b) for cases
in which a specific answer has not been filed, the proper
characterization of the motion is as one to dismiss under Rule
12(b)(6) to dismiss.

The question of characterization is

ultimately immaterial, however, because a Rule 12(c) motion for
judgment on the pleadings is treated in the same manner as a

5

Rule 12(b)(6) motion to dismiss.

Portugues-Santana v. Rekomdiv

Intern. Inc., 725 F.3d 17, 25 (1st Cir. 2013).
For either motion, I may dismiss only if “taking all of the
complaint’s well-pled allegations as true and viewing the other
facts in the light most favorable to the plaintiff, the
complaint does not allege ‘enough facts to state a claim to
relief that is plausible on its face.’” Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A statute of limitations defense is an affirmative defense
that can be addressed by either a 12(b) (6) or a 12(c) motion.
Dismissal may only be granted if “the complaint and any
documents that properly may be read in conjunction with it show
beyond doubt that the claim asserted is out of time.”

Rodi v.

Southern New England School of Law, 389 F.3d 5, 17 (1st Cir.
2004).
B.

Choice of Law
These cases are in federal court because of diversity

jurisdiction.

28 U.S.C. § 1332.

When jurisdiction is based on

diversity of citizenship, federal courts must apply the relevant
state statute of limitations.
88 (1st Cir. 1994).

Lareau v. Page, 39 F.3d 384, 387-

At issue here is whether to apply the

statute of limitations from Mississippi or from Massachusetts.
In determining which statute of limitations to apply, I must
resolve at the threshold whether Massachusetts or Mississippi
6

choice of law rules are to be used for each category of case at
issue in this motion.
The standard choice of law rule in diversity actions
invokes application of the choice of law rules of the forum
state.

Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487,

496 (1941); In re Volkswagen Audi Warranty Extension Litig., 692
F.3d 4, 14 (1st Cir. 2012).

For MDL matters, in which cases are

transferred from all over the country 4 to one consolidated
location for purposes of efficiency and convenience, the law of
the MDL forum itself is not necessarily the proper source for
the choice of law standards.

The First Circuit has not formally

endorsed a choice of law rule for MDLs, but has noted without
deciding the issue, that “[w]here a suit is consolidated and
transferred under § 1407 [for purposes of an MDL], courts
typically apply the choice of law rules of each of the
transferor courts.”

Volkswagen, 692 F.3d at 17.

The First

Circuit observed that this approach is consistent with the
Supreme Court’s holding in Piper Aircraft Co. v. Reyno, 454 U.S.
235 (1981) that when a case is transferred to a more convenient
venue under 28 U.S.C. § 1404(a), a court applies the choice-oflaw rules of the state from which the case was transferred.
Volkswagen, 692 F.3d at 18.

The Supreme Court has characterized

4

The roughly 2,500 cases in this MDL docketed to date in this
court are drawn from 47 different states, the District of
Columbia and Puerto Rico.
7

transferring a case as a “housekeeping measure” that results in
a change of courtrooms but not a change of law.

Van Dusen v.

Barrack, 376 U.S. 612, 636-37 (1964).
This approach is more easily applied to some categories of
cases in this MDL than to others.

There are five categories of

cases at issue in the motion before me.

The categories depend

on where the cases were filed (including whether they were
direct filed in this MDL) and whether Massachusetts or
Mississippi was designated as the “home forum” on the Short Form
Complaint.

The five categorical variations are:

(1) Mississippi filed/Mississippi “home forum”;
(2) Mississippi filed/Massachusetts “home forum”;
(3) Massachusetts filed/Massachusetts “home forum”; 5
(4) Direct MDL filed/Mississippi “home forum”; and
(5) Direct MDL filed/Massachusetts “home forum”.
For two categories, the parties agree that the choice of
law determination is clear because there is no question that the
state in which the claim was filed is also properly considered
the home forum.

This agreement is well founded and I will apply

Mississippi choice of law rules to category (1), the Mississippi
filed cases with a designated Mississippi home forum, and I will
5

The one case in this category was filed in Massachusetts prior
to CMO-7, so is not considered direct filed. As an
administrative matter, it was transferred by the JPML into this
MDL. No cases were filed in Massachusetts, transferred to the
MDL, and then chose a Mississippi forum.
8

apply Massachusetts choice of law rules to category (3), the
Massachusetts filed case with a designated Massachusetts home
forum.
The answer to the choice of law question for the other
categories of cases requires more extended discussion.

The

plaintiffs contend that the selection of Massachusetts as the
“home forum” on the Short Form Complaint should control the
choice of law analysis for both categories (4) and (5), the
direct filed cases, and for (2), the Mississippi-filed cases
that amended their complaint with a Massachusetts home forum
pursuant to CMO-7.

A plaintiff’s choice of forum is reviewed

with deference, Mercier v. Sheraton Int’l, Inc., 981 F.2d 1345,
1354 (1st Cir. 1992), and

permitting a plaintiff to determine

which of multiple appropriate forums apply is consistent with
the deference traditionally shown to a plaintiff’s choice of
forum.

Gulf Oil Corp v. Gilbert, 330 U.S. 501, 508 (1947).

FMCNA argues that the designation made in the Short Form
Complaint should not affect the choice of law analysis.

The

Short Form Complaint, they say, is a creature of CMO-7, and CMO7 is the embodiment of an agreement between plaintiffs and
FMCNA.

In this connection, FMCNA points to drafting history to

show that they specifically avoided clarifying the choice of law
issues through CMO-7.

Plaintiffs had twice suggested including

a provision specifying which choice of law rules control—
9

initially suggesting that the choice of law rules of the state
where a plaintiff was injured by the products should control,
which for these plaintiffs would be Mississippi, and later
suggesting a clause stating that Massachusetts choice of law
rules would control for cases in which plaintiffs chose
Massachusetts as their home forum.

FMCNA rejected both attempts

to resolve the choice of law issue as a matter of the parties’
agreement through CMO-7.

FMCNA argues that, since they did not

agree that anything in CMO-7 should affect choice of law rules,
the designation in the Short Form Complaint of Massachusetts or
another jurisdiction as the “home forum” should have the same
effect as a choice of venue—it determines where the case
ultimately will be tried, not what laws are properly applied.
Van Dusen v. Barrack, 376 U.S. at 639.
To be sure, the drafting of CMO-7 was done by the parties,
who agreed on the text that they submitted.

But I reviewed and

then issued the agreed-upon text as a court order, and it
therefore falls to me to construe the meaning and implications
of the order.

See Harvey v. Johanns, 494 F.3d 237, 242 (1st

Cir. 2007)(deference afforded district court’s interpretation of
its own order).
CMO-7 does not contain the words “choice of law” and does
not expressly require the application of any particular choice
of law rule.

The reason for this is made clear by the drafting
10

history showing that FMCNA insisted on not including any
provision clarifying the choice of law issue.

CMO-7 does,

however, contain numerous agreements between the parties, for
example allowing direct filing and deeming the Master Complaint
and Master Answer filed in all of the MDL cases.

CMO-7 also

contains detailed language about the home forum designation in
the Short Form Complaint.

For direct filed cases, paragraph ten

of CMO-7 provides that “[a]s to any Plaintiff who chooses to
file the case directly in these MDL 2428 Proceedings, the
Plaintiff may elect on the Short Form Complaint, for the
Complaint to be deemed to have been originated in Massachusetts
(hereafter referred to as his or her “home forum”), thereby
electing for the case to be tried or otherwise resolved in the
District of Massachusetts . . .”

FMCNA attempts to argue that

this provision shows that the home forum designation goes only
to the question of the venue, where the case would ultimately be
tried.

However, while this paragraph indicates that the

designation of a home forum will control where the case will be
tried, it does not limit the designation to significance on that
issue alone.

Instead, it defines “home forum” as meaning the

place where the complaint will be deemed to have originated.

In

addition, paragraph twelve of CMO-7 provides that home forum
designation is not necessary for the parties to agree to try the
case in Massachusetts, so it would be puzzling for the home
11

forum designation to be relevant solely to venue of any ultimate
trial.
Paragraph nineteen of the same section states, “Utilization
of the procedure set forth in this Order for directly filing a
case in the MDL 2428 Proceedings shall not result in this Court
being deemed the “transferor court” for any such directly filed
case, unless the Plaintiff elects to choose Massachusetts as his
or her home forum on the Short Form Complaint.”

The term

“transferor court” is not defined in CMO-7, but it echoes the
term “transferor district,” defined in JPML Rule 1.1 as “the
federal district court where an action was pending prior to its
transfer pursuant to Section 1407, for inclusion in an MDL, and
where the Panel may remand that action at or before the
conclusion of pretrial proceedings.”

277 F.R.D. 480.

The fairest construction of these provisions is that where
direct filing plaintiffs choose Massachusetts as their home
forum on the Short Form Complaint, this court will treat the
cases as if they had been originated in Massachusetts and were
transferred from this court into the MDL.
CMO-7 says less about cases that were previously filed.
Paragraph nineteen of CMO-7 provides only that “Cases which were
pending at the time of entry of this revised CMO 7 may opt to
choose Massachusetts as the “home forum” if the case was
transferred from another jurisdiction, by checking where
12

indicated on the Short Form Complaint.”

While the language

about originating forum and transferor court are absent in this
section, there is no indication that the term “home forum”
there, referring to the same check box in the Short Form
Complaint for direct filed cases, is meant to have any different
meaning.
The fairest construction of the language of CMO-7 is that I
should treat Massachusetts as the “home forum,” “originating
forum,” and “transferor court” for previously filed cases that
checked off Massachusetts as the home forum on the Short Form
Complaint.
This construction is consistent with FMCNA’s insistence
that CMO-7 itself not specify a choice of law rule.
Massachusetts’ status as the home forum when so chosen on the
Short Form Complaint is a factual designation that the parties
agreed to.

Choice of law determinations are legal questions,

Reicher v. Berkshire Life Ins. Co. of America, 360 F.3d 1, 4
(1st Cir. 2004), distinct from the facts on which I may rely to
reach an answer.

The parties need not have agreed that

designating a Massachusetts home forum would control the choice
of law analysis, and the text and drafting history indicate that
the parties did not reach a decision on this issue.
Choice of law in the context of MDLs is an important and
thorny issue, particularly in the context of direct filing.
13

See

Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice
of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759
(2012).

Different courts have taken different approaches to

choice of law rules for direct filing.

For example, the court

in In re Vioxx, 478 F. Supp. 2d 897 (E.D. La. 2007) drew on the
rule from Klaxon applying the law of the forum state and applied
Louisiana choice-of-law rules to direct filed cases.

Accord In

re Trasylol Prods. Liab. Litig., 2011 WL 1033650, *3 (S.D. Fla.
Jan. 18, 2011); Byers v. Lincoln Elec. Co., 607 F. Supp. 2d 840,
844 (N.D. Ohio 2009).
FMCNA clearly had a different idea about the proper choice
of law analysis to be applied, believing that in the absence of
an agreement about the proper choice of law rule, a default rule
focused on the place where plaintiffs consumed the products and
suffered their injury should control.

This is similar to the

default rule applied by the court in In re Yasmin and Yaz
Marketing, Sales Practices and Prods. Liab. Litig., 2011 WL
1375011, *6 (S.D. Ill. 2011), in which the court chose a default
rule applying the law of the state where the plaintiff purchased
and was prescribed the drug at issue in the litigation.

Courts

have devised different approaches to choice of law in direct
filing cases because they did not have a conventional home forum
before them on which to apply the traditional Klaxon analysis.
313 U.S. 487.

Despite the fact that the parties did not agree
14

on a particular choice of law rule, I am satisfied that they may
be held under CMO-7 to the treatment of Massachusetts as the
equivalent of the originating or transferor forum when
Massachusetts was chosen as the home forum in the Short Form
Complaint.

For the direct filed cases that chose a

Massachusetts home forum, therefore, I will apply Massachusetts
choice of law rules because I conclude Massachusetts is the home
forum under the provisions in CMO-7.

For the cases specifying

Mississippi as the home forum, I will apply Mississippi choice
of law rules. 6
I reject the suggestion that the choice-of-law rules of the
state where a plaintiff or decedent was prescribed, purchased,
and used the product at issue should for that reason govern.
This suggestion is based on the principle that neither party in
a diversity case is permitted to change the applicable law by
initiating a transfer of venue in federal court.
Barrack, 376 U.S. at 639.

Van Dusen v.

Defendants argue that the

administrative device of direct filing should not alter the
substantive law that governs any particular case, and then reach
the conclusion that the substantive law that should apply in
6

See Bradt, The Shortest Distance, 88 Notre Dame L. Rev. at 816
(opining that the “best solution would be to require a directfiling MDL plaintiff to declare in the complaint an appropriate
‘home venue’ where the case could have otherwise been filed” as
a way of clarifying choice of law issues for cases directly
filed in MDLs while maintaining “neutrality” toward plaintiffs’
choice of one of multiple proper originating forums).
15

this case is that of the forum where the products were
prescribed, purchased, and used.
The same principle that direct filing should not affect the
substantive law applied, however, actually suggests the opposite
result.

In the cases cited by defendants, the MDL courts

rejected the possibility of applying their own choice of law
rules because they had no connection to the direct filed cases
other than the fortuity of being chosen as the MDL court by the
JPML, see, e.g., In re Watson Fentanyl Patch Prods. Liab.
Litig., 977 F. Supp. 2d 885, 888 (N.D. Ill. 2013)(direct filed
case had “no connection with Illinois other than the fortuity
that the JPML authorized an MDL proceeding to take place
[there]”); Wahl v. General Elec. Co. 983 F.Supp.2d 937, 944
(M.D. Tenn. 2013)(transferor court found, on remand, that venue
was not proper in MDL court and therefore applies its own, and
not the MDL court’s, choice of law).
In this case, by contrast, plaintiffs injured in
Mississippi could have filed in Mississippi but also could have
filed in Massachusetts because FMCNA is based in Massachusetts.
While I agree with the notion that the proper approach for
direct filed cases is to treat them “as if they were transferred
from a judicial district sitting in the state where the case
originated,” In re Yasmin and Yaz Marketing, Sales Practices and
Prods. Liab. Litig., 2011 WL 1375011, *6 (S.D. Ill. 2011), I
16

disagree that in this case the test proposed by defendants
should lead to the only one possible originating district.
Absent direct filing, plaintiffs would have been able to
file their claim in either Mississippi or in Massachusetts.
Using a test that focuses on the location of the use of the
products, rather than on the location of the alleged negligence,
would deprive plaintiffs of the choice that they otherwise would
have had between two proper forums.

Indeed, applying a default

rule like that advocated by the defendants would limit
plaintiffs’ choice of a proper forum and would be tantamount to
creating a federal choice of law rule privileging the location
of the consumption of a product rather than the location of the
alleged negligence.

The creation of federal choice of law rules

is precisely what was rejected by Klaxon.

313 U.S. at 496.

FMCNA objects to the use of the home forum selected by
plaintiffs in the Short Form Complaint for purposes of choice of
law analysis on the ground that they did not agree that this
designation would control the choice of law analysis.

For

purposes of the direct filed cases, this objection is
unsustainable because absent direct filing the plaintiffs would
have been permitted to file originally in either forum without
regard to FMCNA’s consent.

Permitting a plaintiff unilaterally

to determine which of multiple appropriate forums should apply
is consistent with the deference traditionally shown to a
17

plaintiff’s choice of forum.

Gulf Oil Corp v. Gilbert, 330 U.S.

501, 508 (1947) and Mercier v. Sheraton Int’l, Inc., 935 F.2d
419 at 430.
The home forum designation of the direct filing plaintiffs
is the best evidence I have of what these plaintiffs would have
done absent direct filing.

Just as Mississippi plaintiffs would

have had a choice between at least two proper forums in the
absence of direct filing, so too do they have such an option
with the direct filing procedure.

I will therefore consider the

forum that the direct filing plaintiffs designated on their
Short Form Complaints as the originating home forum for the
choice of law analysis.

The eleven direct filing plaintiffs who

chose Massachusetts as their home forum will be subject to a
Massachusetts choice of law analysis and the nine direct filing
plaintiffs who chose Mississippi as their home forum will be
subject to a Mississippi choice of law analysis.
The issue of choice of law for plaintiffs whose cases were
originally filed in Mississippi but who designated a
Massachusetts home forum when they filed a Short Form Complaint
pursuant to CMO-7 is more complex.

Absent CMO-7 and the Short

Form Complaint, these cases would clearly be deemed to have
originated in Mississippi and Mississippi choice of law rules
would apply.

CMO-7, however, permits plaintiffs in cases that

are already pending to choose Massachusetts as their “home
18

forum” by checking Massachusetts on the Short Form Complaint.
CMO-7 ¶ 19.

CMO-7 explains that the Short Form Complaint will

replace the original long form complaint as an amended
complaint.

Id. ¶ 17.

The plaintiffs in this category contend that CMO-7
permitted them to amend their complaint and change its
originating forum from Mississippi to Massachusetts and thereby
change the relevant choice of law rules.

The term “home forum”

as used in CMO-7 concerning preexisting cases, however, does not
by terms clearly mean replacing the originating forum for
purposes of choice of law rules.

In fact, such a construction

would be in derogation of the “housekeeping” principle of Van
Dusen, 376 U.S. at 636-37.

In the absence of a clear direction

in CMO-7 permitting the amended complaint to supersede the
original forum for purposes of choice of law analysis, I will
construe CMO-7 to direct the application of the law of
Mississippi when Mississippi was the original forum in which
those cases were filed.
To recapitulate my choice of laws determinations as to the
various categories of Mississippi plaintiff cases before me:
(1)

For Mississippi filed/Mississippi “home forum” cases,
Mississippi choice of law principles will apply;

19

(2)

For Mississippi filed/ Massachusetts “home forum”
cases, Mississippi choice of law principles will
apply;

(3)

For Massachusetts filed/Massachusetts “home forum”
cases, Massachusetts choice of law principles will
apply;

(4)

For direct filed/Mississippi “home forum” cases,
Mississippi choice of law principles will apply; and

(5)

For direct filed/Massachusetts “home forum” cases,
Massachusetts choice of law principles will apply.

1.

Applying Massachusetts Choice of Law

Massachusetts has rejected the “automatic application of
the forum State’s statute of limitations” and instead applies a
“functional approach” to choice of law questions concerning
statutes of limitation as stated in the Restatement (Second) of
Conflict of Laws § 142.

Nierman v. Hyatt Corp., 808 N.E.2d 290,

292 & n.7 (Mass. 2004).

Under this functional approach, a

Massachusetts court “generally will apply its own statute of
limitations to permit a claim unless: (a) maintenance of the
claim would serve no substantial interest of the forum; and (b)
the claim would be barred under the statute of limitations of a
state having a more significant relationship to the parties and
the occurrence.”

Id. at 292 (quoting Restatement (Second) of

Conflict of Laws § 142).
20

Plaintiffs urge me to read this rule sequentially, looking
first to whether Massachusetts has any substantial interest in
maintaining the claim and, if there is an affirmative answer,
not considering the question posed by the second prong of the
inquiry as to which state has the more significant relationship.
This analysis is consistent with the compound structure of
Section 142, requiring both prongs to be met in order to apply a
foreign statute of limitations.
That approach was taken by the Supreme Judicial Court in
New England Telephone v. Gourdeau, 647 N.E.2d 42 (Mass. 1995),
where the court rejected the previous rule that treated statutes
of limitation as procedural and inflexibly applied the
Massachusetts statute of limitations.

The SJC in Gourdeau

applied the “functional approach” to statute of limitations
choice of law issues for the first time, and drew on Section
142(2) for guidance.

Id. at 45.

The court observed that

“Restatement § 142(2)(a) states that Massachusetts should apply
its own statute of limitations permitting a claim to be asserted
unless ‘maintenance of the claim would serve no substantial
interest of [Massachusetts].’ Massachusetts has a substantial
interest in letting [plaintiff’s] claim go forward.”

Id. The

court, having determined that Massachusetts had a substantial
interest, went on to note that its “analysis does not reach the
question presented by § 142(2)(b), under which the State with
21

the more significant relationship to the parties and the
occurrence must be determined.”

Id. at 45, n.6.

In more recent cases, however, the Supreme Judicial Court while citing Section 142 - has reversed the order of analysis,
focusing primarily on the question of which state has the more
significant relationship to the issues in the case.

For

example, Nierman v. Hyatt Corp., 808 N.E.2d 290, 292 & n.7
(Mass. 2004) was a case concerning a Massachusetts resident who
was injured at a hotel in Texas.

The Nierman court first

determined that Texas had the more significant relationship to
the issues in the case, and only then briefly considered whether
Massachusetts had any substantial interest that would be
advanced by allowing the Niermans’ claims.

This substantial

interest analysis, however, weighed the “general interest [of
Massachusetts] in having its residents compensated for personal
injuries suffered in another State” against the interest of
Texas, and the court found that the Massachusetts interest was
not “more compelling” than that of Texas.

Id. at 293.

Plaintiffs contend that Massachusetts has a substantial
interest in applying its own statute of limitations here because
FMCNA’s principal place of business is in Massachusetts and it
made decisions here regarding the design, marketing, sale,
distribution, labeling, instructions and warnings—or decisions
not to provide particular instructions and warnings—to medical
22

providers concerning the use of GranuFlo and NaturaLyte.
Plaintiffs argue that the Massachusetts interest in deterrence
and holding its resident defendant accountable for its
misconduct that occurred in Massachusetts are substantial ones.
It is certainly true that “Massachusetts law and product
liability law generally support holding accountable those whose
defective products cause injuries. [P]ublic policy demands that
the burden of accidental injuries caused by products intended
for consumption be placed upon those who market them.”

Donovan

v. Philip Morris USA, Inc., 268 F.R.D. 1, 18-19 (D. Mass. 2010)
(quoting Cosme v. Whitin Mach. Works 632 N.E.2d 832, 835 (Mass.
1994), and Correia v. Firestone Tire & Rubber Co., 388 Mass.
342, 446 N.E.2d 1033, 1040 (1983))(internal quotation marks
omitted). In Cosme, 632 N.E.2d at 836, Massachusetts’
“significant interest in seeing that its . . . resident
defendant . . . be held accountable for its conduct, which took
place in Massachusetts, and which allegedly caused the
plaintiff’s injury” was part of the analysis in which the court
engaged in determining the applicability of a Massachusetts
statute of repose. 7

7

Cosme, from 1994, was decided before the Supreme Judicial
Court adopted the functional approach to statutes of limitation
in Gordeau. While Massachusetts courts in 1994 were still
typically considering statutes of limitation to be procedural
and applying domestic statutes of limitation, in Cosme it
engaged in a precursor to the functional approach adopted in
23

FMCNA argues that Mississippi has the more significant
relationship to the causes of action here because the case
involves no Massachusetts plaintiffs or decedents and the
plaintiffs or decedents were prescribed and administered
GranuFlo or NaturaLyte, if at all, in Mississippi, and the death
or injuries occurred in Mississippi.

Defendants argue that

Massachusetts has only a “minimal interest” in this case, not a
substantial interest.
Despite the flexible analysis applied by Massachusetts
courts in focusing primarily on which state has the more
significant relationship and only secondarily on whether
Massachusetts has a substantial interest in maintaining the
claim, no court of which I am aware has found that Massachusetts
has a substantial interest but then not applied the
Massachusetts statute of limitation.

The Supreme Judicial Court

has made clear, however, that the mere fact that a plaintiff or
defendant is a resident of Massachusetts does not create a
substantial interest.

See Nierman, 808 N.E.2d at 294; Kahn v.

Royal Ins. Co., 709 N.E.2d 822, 824 (Mass. 1999).

Massachusetts

courts have, nevertheless, considered the location of events
that constitute the alleged wrongdoing as essential for the
substantial interest analysis.

See, e.g., Nierman 808 N.E.2d at

1995 because the statute at issue was a statute of repose,
recognized as a substantive law, rather than a statute of
limitations, which at that time was treated as procedural.
24

697

(“all of the events constituting the alleged negligence

took place in Texas”); Delfuoco v. K-Mart Corp., 817 N.E.2d 339
(“it was in Pennsylvania that all of the events constituting the
alleged negligence took place, where the defendant operates a
business . . .”); Ristaino v. D.C. Bates Equip. Co., 2004 WL
1171247 (Mass. Super. May 12, 2004)(Massachusetts statute of
limitation applied where New Jersey plaintiff was injured in New
Jersey by a defective product produced in Massachusetts by a
Massachusetts company).

Here, plaintiffs do not argue that

Massachusetts choice of law rules should apply because FMCNA
simply happens to have its primary place of business here, but
rather argue that Massachusetts has a substantial interest in
holding its resident defendants responsible for misconduct that
allegedly occurred in this state.

They allege that FMCNA

actually engaged in wrongdoing in Massachusetts through its
decisions about designing, developing, packaging and labeling
NaturaLyte and GranuFlo.

By alleging that FMCNA’s actual

misconduct that occurred in Massachusetts, the plaintiffs have
demonstrated more than a general interest related to residence;
they have made out a substantial interest of Massachusetts in
the timeliness of this matter.
Although I believe that this choice of law issue is
resolved due to Massachusetts’ substantial interest in the
timeliness of this action, I also note that it is not apparent
25

from the pleadings that Mississippi has a more significant
interest in the timeliness of this matter than does
Massachusetts.

In determining whether Massachusetts or

Mississippi has the “more significant” relationship with the
cause of action, a court should consider “(a) the place where
the injury occurred, (b) the place where the conduct causing the
injury occurred, (c) the domicile, residence, nationality, place
of incorporation and place of business of the parties, and (d)
the place where the relationship, if any, between the parties is
centered.”

Cosme, 632 N.E.2d at 834 n.3 (citing Restatement

(Second) of Conflicts of Laws § 145).
inquiry.

This is a fact-specific

The pleadings do not provide a clear answer.

While

the injuries suffered by Plaintiffs occurred in Mississippi, a
significant part of the FMCNA’s wrongdoing as alleged in the
pleadings occurred in Massachusetts.

Plaintiffs or their

decedents reside in Mississippi, but FMCNA’s business
headquarters are in Massachusetts.

There have been no

allegations of any relationship between the parties in either
state.
It is possible that after discovery the relevant facts in
the several cases at issue may look different.

See Silica Tech,

L.L.C. v. J-Fiber, GmbH, 2009 WL 2579432, at *3 (D. Mass. Aug.
19, 2009) (“the choice of law determination at this nascent
juncture is preliminary because of the inchoate nature of the
26

record. Hence, this recommendation does not preclude a party
from providing additional evidence necessitating a review of the
choice of law at a later point in time when discovery is more
fully developed.”).

However, at the motion to dismiss stage,

with facts viewed in the light most favorable to the plaintiffs,
Massachusetts has a substantial interest in the timeliness of
this action due to allegations of negligence occurring in this
state by a resident defendant and the relative interests of both
state in the timeliness of the suit are more or less equal.

The

use of the Massachusetts statute of limitations is appropriate
for categories (3) and (5), which involve cases subject to a
Massachusetts choice of law analysis.
2.

Applying Mississippi Choice of Law

The parties agree that Mississippi choice-of-law rules
generally treat a statute of limitations as procedural and thus
apply Mississippi’s limitations periods.
F.3d 442, 450 (5th Cir. 2009).

Huss v. Gayden, 571

Plaintiffs contend that

Mississippi nonetheless would apply the Massachusetts statute of
limitations for wrongful death proceedings because of “a wellestablished exception . . . where a particular state’s
limitations period is considered to be part of its substantive
law because the limitations period is ‘built in’ or ‘in the same
enactment’ as the statute which creates the right of action.”
Morningstar v. Gen. Motors Corp., 847 F.Supp. 489, 491 (S.D.
27

Miss. 1994).

Massachusetts’ wrongful death statute, Mass. Gen.

Laws ch. 229, § 2, contains such a “built in” three-year statute
of limitations.
Plaintiffs have not, however, provided any argument about
why Mississippi would be applying Massachusetts’ substantive law
here.

Mississippi follows the “most significant relationship

test embodied in the Restatement (Second) of Conflicts of Law.”
McDaniel v. Ritter, 556 So.2d 303, 310 (Miss. 1989).

For torts,

“the law of the place where the injury occurred controls unless
some other state has a more significant relationship to the
accident and the parties.”

Walls v. General Motors, Inc., 906

F.2d 143, 145 (5th Cir. 1990); see also Restatement (Second)
§ 175 (“the state where the injury occurred determines the rights
and liabilities of the parties unless, with respect to the
particular issue, some other state has a more significant
relationship . . . to the occurrence and the parties.”).

There

is no reason to believe that Massachusetts substantive law must
be applied in cases from Mississippi.

Mississippi is not likely

to view Massachusetts as having a “more significant
relationship” to cases involving injury caused in Mississippi to
Mississippi plaintiffs.

There would therefore be no reason for

Mississippi to apply the built in statute of limitations in the
Massachusetts statute.

Mississippi statutes of limitation apply

28

to categories (1), (2), and (4), which involve cases subject to
a Mississippi choice of law analysis.
C.

Applying Statutes of Limitation
1.

Massachusetts Law

a.

Applicable Statutes

The Massachusetts statute of limitations for a wrongful
death action requires that “[a]n action to recover damages . . .
shall be commenced within three years from the date of death, or
within three years from the date when the deceased’s executor or
administrator knew, or in the exercise of reasonable diligence,
should have known of the factual basis for a cause of action.”
Mass. Gen. Laws ch. 229, §2.

Under this statute, if a factual

basis for bringing a claim only becomes known after a decedent’s
death, the three-year period runs from the date the executor or
administrator learns, or should realize, that there is a basis
for bringing a claim.

See, e.g., Evans v. Lorillard Tobacco

Co., 465 Mass. 411, 450 (Mass. 2013).
The same analysis applies to causes of action for tort and
personal injury, which also have a three year statute of
limitations, Mass. Gen. Laws ch. 260, § 2A, and are subject to a
common law discovery rule, see Bowen v. Eli Lilly & Co., 557
N.E. 2d 739, 741 (Mass. 1990).

Plaintiff’s negligence,

29

tort-based breach of warranty, 8 and failure to warn claims all
fall within this rubric.

See Genereux v. American Berylia

Corp., 577 F.3d 350, 359 (1st Cir. 2009).
b.

Discovery Rules

The Massachusetts common law discovery rule begins the
statute of limitations period “when the plaintiff discovers, or
reasonably should have discovered” that the plaintiff “has been
harmed or may have been harmed by the defendant’s conduct.”

Koe

v. Mercer, 876 N.E.2d 831, 836 (Mass. 2007) (quoting Bowen v.
Eli Lilly Co., 557 N.E.2d 739 (Mass. 1990)).

The three-year

statute of limitations period for tort-based claims does not
begin to run until a plaintiff is aware or should have been
aware both of the injury and that the defendant caused the
injury.

Id.

The discovery rule looks not to the actual

8

The statute of limitations for breach of warranty in
Massachusetts is either three years if the claim is a tort-based
warranty claim, Mass. Gen. Laws ch. 106, §2-318, or four years
if the claim is a contract-based warranty claim, Mass. Gen. Laws
ch. 106 § 2-725. Bay State-Spray & Provincetown S.S., Inc., v.
Caterpillar Tractor Co., 533 N.E.2d 1350, 1355 (Mass. 1989).
Where, as here, the breach of warranty claims “are in essence
products liability actions,” the three-year statute of
limitations of § 2-318 controls. Id. (quoting Wilson v. Hammer
Holdings, Inc., 850 F.2d 3, 7-8 (1st Cir. 1988). Contract-based
warranty claims under §2-725 accrue from the date of delivery of
goods without regard to knowledge of breach of warranty. Bay
State-Spray, 533 N.E.2d at 1352. In contrast, tort-based
warranty claims under §2-318 accrue on the date of injury or
damage, id., and are subject to the Massachusetts discovery
rule. Fidler v. Eastman Kodak Co., 714 F.2d 192, 197 (1st Cir.
1983).
30

knowledge of the plaintiff, but to what a reasonable person in
the plaintiff’s position would have known or discovered on
inquiry.

Genereux, 577 F.3d 350, 359 (1st Cir. 2009) (citing

Bowen, 557 N.E.2d at 743).

Massachusetts discovery rules

require an individualized fact-intensive inquiry, id. at 360,
for each of the plaintiffs in categories (3) and (5) governed by
the Massachusetts statute of limitations as to when they knew or
should have known of the factual basis for a cause of action.
2. Mississippi Law
a. Applicable Statutes
Under Mississippi law, wrongful death actions are governed
by Mississippi Code Section 11-7-13, which has no explicit
statute of limitations.

This statute “encompasses all claims—

including survival claims which could have been brought by the
decedent, wrongful-death claims, estate claims, and other
claims—resulting from a tort which proximately caused a death.”
Empire Abrasive Equipment Corp. v. Morgan, 87 So.3d 455, 461-62
(Miss. 2012)(citing Caves v. Yarbrough, 991 So.2d 142, 150
(Miss. 2008)).
Actions under the wrongful death statute are typically
“predicated on an underlying tort, and the action is limited by
the statute of limitations which is applicable to that tort.”
Id. at 462.

For actions with no prescribed statute of

limitations, including most torts, Mississippi’s “catch-all”
31

statute of limitations is three years.
49.

Miss. Code Ann. § 15-1-

The statute of limitations governing express and implied

warranty claims, which can be foundations for a wrongful death
claim, is six years.

Miss. Code Ann. § 75-2-725. 9

b. Discovery Rules
The catch-all three-year statute of limitations provides,
“In 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.

This discovery rule only applies

when there is a latent injury.

PPG Architectural Finishes v.

Lowery, 909 So.2d 47, 50 (Miss. 2005).

An injury is latent when

a plaintiff cannot discover it “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.”

Donald v. Amoco

Production Co., 735 So.2d 161, 168 (Miss. 1999).
Mississippi construes the discovery rule of § 15-1-49
narrowly.

Under the Mississippi discovery rule, “the cause of

action accrues once a party discovers its injury—regardless of
whether the party has also discovered the cause of the injury.”
9

At the hearing on these motions the defendants conceded that
the plaintiffs’ warranty claims may survive even if a
Mississippi statute of limitations law is applied.
32

State Indus. Products Corp. v. Beta Technology Inc., 575 F.3d
450, 454 (5th Cir. 2009); see also Angle v. Koppers, Inc., 42
So.3d 1, 7 (Miss. 2010) (“No provision of Section 15-1-49
provides that a plaintiff must have knowledge of the cause of
the injury before the cause of action accrues”).
The meaning of § 15-1-49 is clarified through comparison
with the Mississippi medical malpractice discovery rule, which
refers to the date an “act, omission or neglect shall or with
reasonable diligence might have been first known or discovered,”
Miss. Code Ann. § 15-1-36.

In Barnes v. Koppers, 534 F.3d 357

(5th Cir. 2008), the Fifth Circuit contrasted the general latent
injury discovery rule at issue here with the medical malpractice
provision under § 15-1-49.

The Barnes court held that the

differences between these two discovery statutes, with only the
medical malpractice discovery rule focusing on discovery of the
act or omission that led to the injury, shows the “limited
scope” of the latent discovery provision.

34 F.3d at 360.

See

also Caves v. Yarbrough, 991 So.3d 142, 154-55 (Miss. 2008)
(“comparing the discovery rules in the medical-malpractice
statute and the ‘catch-all’ statute, we have one which focuses
on discovery of the date of the wrongful conduct, and another

33

which focuses on the date of discovery of the injury or
disease”). 10
The Mississippi discovery rule is an austere one, rejecting
evidence of causation as relevant to the discovery of the injury
even when the injury itself would not ordinarily lead someone to
file suit in the absence of some evidence of causation or
wrongdoing.

The facts of Barnes provide a good illustration of

this approach.

In Barnes, a woman died after being diagnosed

with breast cancer.

After her death, her children discovered

that the family had been exposed to environmental contamination,
and they believed that exposure had caused their mother’s breast
cancer.

Applying Mississippi law, the Fifth Circuit held that

the claims accrued for statute of limitations purposes when the
decedent was first diagnosed with or learned of her breast
cancer, not when her children discovered the environmental
contamination which may have caused their mother’s cancer and
ultimate death.

Barnes, 534 F.3d at 361.

10

In Angle v. Koppers,

Mississippi cases about the discovery rule have, however,
occasionally drawn on the language of medical malpractice in
torts cases, see, e.g., Boyles v. Schlumberger Tech. Corp., 832
So.2d 503 (Miss. 2002), often citing Sarris v. Smith, 782 So.2d
721, 725 (Miss. 2001) and other cases
stating that the
discovery rule involves knowledge not only of the injury but
also of the cause. But Angle v. Koppers, Inc., 42 So.3d 1, 7
(Miss. 2010) and Barnes v. Koppers, 534 F.3d 357 (5th Cir.
2008), have now firmly established that the case law concerning
discovery in medical malpractice cases does not control the
discovery rule of the catch-all provision of § 15-1-49.

34

42 So.3d at 7, the Mississippi Supreme Court approvingly cited
the discussion of the limited nature of the discovery rule in
Barnes.

The court in Angle affirmed a dismissal where the

plaintiff’s injuries in a toxic tort case occurred more than
three years before she filed the case, rejecting her argument
that the statute of limitations ran from the date she discovered
the toxic exposure that she alleged caused her injuries.

Id. at

5.
FMCNA argues that the injuries here, as detailed in the
plaintiffs’ complaint and as inherent in their wrongful death
claims, are cardiac arrest and death of plaintiffs and/or
plaintiffs’ decedents.

These injuries, FMCNA claims, were

immediately apparent at the time they occurred and cannot be
considered latent.

The discovery rule does not apply to

injuries that are not latent, and this, they argue, should be
the end of the analysis.
Plaintiffs respond that the injury is not the death or
cardiac arrest, but the increased level of bicarbonate in their
blood.

They argue that death or cardiac arrest were mere

manifestations of that injury.

An increase in bicarbonate

levels in the blood, however, is not an injury on its own but
rather is relevant only to causation.

To be sure, in Pollard v.

Sherwin-Williams Company, 955 So.2d 764 (Miss. 2007), the
Mississippi Supreme Court recognized a distinction between
35

misconduct causing a harmful alteration in blood composition and
the manifestation of an illness caused by that alteration.

The

Pollard court considered when a cause of action for lead
poisoning accrued.

Despite noting that a child had suffered

from cognitive disabilities and other mental and physical
ailments, the court held that the cause of action accrued no
later than the date that “blood lead lab tests confirmed
significantly elevated readings of lead, indicative of excessive
exposure to lead.”

Id. at 770.

Plaintiffs contend that this

illustrates a rule that a claim accrues when there is a
diagnosis of harmful blood alteration, not at the time of any
manifestation related to the blood alteration.

But the Pollard

court’s holding that the cause of action “accrued no later than”
the date of the blood reading appears to have been merely a
shorthand way of choosing an uncontroversial date in that case,
where it would otherwise have been difficult to determine the
date that developmental disabilities manifested.

A more precise

analysis was unnecessary in Pollard because ultimately both that
date and the date of the blood test would have been outside of
the statute of limitations if not for a savings statute related
to minor status.
Despite the clear rule that the key factor is the discovery
of the injury, not causation, some Mississippi courts have
relied on evidence of causation in their analysis focused on
36

determining when a person became aware of an injury under the
discovery rule.

This may help explain the Pollard case

discussed above, in which the court focused on the date that
lead was found in the child’s blood rather than on his cognitive
and other disabilities.
In Lincoln Electric Co. v. McLemore, 54 So.3d 833 (Miss.
2010), a welder was misdiagnosed with Parkinson’s in 2002 and
was told that the disease may be connected to his work as a
welder.

He was later properly diagnosed with manganism due to

his exposure to manganese as a welder.

The Mississippi Supreme

Court held that the claim had actually accrued in 2002, which
was when the plaintiff was made aware of a correlation between
his symptoms and welding.

The court wrote, “While the notice of

this causal relationship generally is irrelevant to the accrual
of the cause of action, it shows McLemore’s knowledge of his
injury at that time.” Id. at 838.

In any event, Pollard does

not mark a departure from Mississippi’s otherwise narrow
discovery rule.

At most it counsels for more intensive analysis

in cases where the injury is misunderstood or difficult to
identify.
Moreover, Plaintiffs’ efforts to deny that cardiac arrest
and death are the relevant injuries in plaintiffs’ case are at
odds with their own complaint.

In the Master Complaint,

plaintiffs state that due to the defective nature of NaturaLyte
37

and GranuFlo and their inadequate labeling and warnings,
plaintiffs and decedents “had significant health problems
including but not limited to cardio pulmonary arrest, and/or
sudden cardiac arrest or death”.

Compl. ¶ 2.

Plaintiffs

allege, “As a direct and proximate result of the acts and
omissions of Defendants, and Plaintiffs’ use of NaturaLyte
and/or GranuFlo, Plaintiffs have suffered death [and] serious
permanent physical injury . . .

Plaintiffs’ serious injuries

and death as a result of their exposure to NaturaLyte and/or
GranuFlo, was caused by and was the direct and proximate result
of Defendants’ breaches of warranty and/or the negligence or
other wrongful conduct of Defendants . . .” Id. at ¶¶ 217, 221.
The complaint itself describes the increase of bicarbonate
levels as contributing to a risk factor for health problems but
not as the injury itself.

Id. at ¶ 111(“Defendants knew, or

should have known, that [an increase in bicarbonate levels in
the blood] contributes to metabolic alkalosis, which is a
significant risk factor associated with many health problems
including heart arrhythmia, cardiopulmonary arrest and sudden
cardiac death.”).

Receiving too much bicarbonate is alleged in

the complaint as leading to a potential electrolyte imbalance
and an increased risk of heart problems.

Id. at ¶ 120 (with too

much bicarbonate, “an electrolyte imbalance can occur . . .a
patient’s potassium and calcium may shift on a cellular level,
38

resulting in a significant increase in the potential for an
arrhythmia or fibrillation”).
Death and cardiac arrest are the injuries that were
suffered by plaintiffs or their decedents in these cases.

These

injuries were apparent to the plaintiffs at the time they
occurred, and therefore cannot be considered latent.

Even if,

as appears implausible, the increased levels of bicarbonate
could fairly be considered an additional injury, this does not
change this conclusion.

Discovery of the injuries from health

problems such as cardiac arrest, not to mention death, does not
depend on whether plaintiffs had discovered what caused them.
While plaintiffs received information about NaturaLyte and
GranuFlo’s effects at a later date, discovery of that
information is irrelevant under § 15-1-49 even if no reasonable
person would have thought to bring suit absent that information.
c. Tolling for Fraudulent Concealment
Mississippi law provides tolling of a statute of
limitations for fraudulent concealment.

“If a person liable to

any personal action shall fraudulently conceal the cause of
action from the knowledge of the person entitled thereto, the
cause of action shall be deemed to have first accrued at, and
not before, the time at which such fraud shall be, or with
reasonable diligence might have been, first known or
discovered.”

Miss. Code Ann. § 15-1-67.
39

To make out fraudulent

concealment, a plaintiff must show that “(1) some affirmative
act or conduct was done and prevented discovery of the claim;
and (2) due diligence was performed on its part to discover the
claim.”

Trustmark

(Miss. 2012).

Nat’l Bank v. Meador, 81 So.3d 1112, 1119

The affirmative act must be a subsequent act,

occurring after the conduct giving rise to the claim.

Bryant v.

Wyeth, Inc., 816 F.Supp.2d 329, 335 (S.D. Miss. 2011), aff’d 487
Fed. Appx. 207 (5th Cir. 2012).

This fraud allegation must be

pled with sufficient particularity to survive dismissal under
Federal Rule of Civil Procedure 9.

Ward v. Life Investors Ins.

Co. of America, 383 F.Supp.2d 82 (S.D. Miss. 2005).
In two products liability cases involving allegations that
a drug manufacturer failed properly to label and warn plaintiffs
of risks related to the drug—similar to the cause of action
here—federal courts in Mississippi came out differently based on
slight variations in facts.

In Bryant v. Wyeth, 816 F.Supp.2d

329, the district court found that there was no fraudulent
concealment because the plaintiff had only alleged fraud in
relation to the labeling and warning.

The court held that

“inadequacies in [defendant company’s] labeling which ultimately
form the basis of plaintiff’s claims for relief do not
constitute subsequent affirmative acts of concealment.”

In

contrast, in Trevino v. Wyeth, 2012 WL 4848739 (S.D. Miss.
2012), the district court found that the defendant company’s
40

actions, such as sending letters to physicians misleading the
public by minimizing the medical risks associated with the
medication by publishing ghostwritten articles, continued after
her breast cancer diagnosis.

The court in Trevino, therefore,

found that there was sufficient evidence of fraudulent
concealment to allow the issue to be tried.
Here the plaintiffs do not identify anything in the Master
Complaint that would meet the subsequent affirmative action
requirement, nor have I found any.

To be sure, the Master

Complaint notes at one point that “Defendant(s) are estopped
from asserting a statute of limitations defense due to
Defendants’ fraudulent concealment, through affirmative
misrepresentations and omissions, from Plaintiffs and/or
Plaintiffs’ physicians of the true risks associated with the
Products.” Compl. ¶ 226.

This allegation is both too general to

meet the requirement of Fed. R. Civ. P. 9 and also does not
specify whether the alleged misrepresentations occurred after
the injury of any particular plaintiff.

Plaintiffs have alleged

numerous instances in which they say FMCNA failed to disclose
knowledge that it had about the safety of GranuFlo and
NaturaLyte, such as through internal memoranda as early as 2001.
Compl. ¶ 152.

They do not allege, however, that FMCNA made any

affirmative misrepresentations, rather they allege that FMCNA
concealed and withheld information concerning risks.
41

Id. at ¶¶

162, 163, 171.

Plaintiffs make one general allegation that

“despite the negative safety results of their 2003 Mortality
Study and/or 2004 Retrospective Study, Defendants affirmatively
misrepresented that NaturaLyte and/or GranuFlo was more
effective and safer than other acid concentrates on the market,”
Id. at ¶ 172, but do not state with particularity what such an
affirmative misrepresentation was and when it occurred.

The

Master Complaint does not allege a subsequent affirmative act
occurring after plaintiffs’ injuries that could meet the
requirements of Mississippi’s law on fraudulent concealment and
the requirements of Fed. R. Civ. P. 9. 11

11

Plaintiffs suggest that I look to language in the original
“long form” complaints filed prior to the cases being
transferred to this MDL. CMO-7 required these plaintiffs to
“file a Short Form Complaint, which shall replace a Plaintiff’s
original ‘long form’ Complaint, by filing the Short Form
Complaint as an ‘amended complaint.’” In the conventional
procedural circumstance, once an original long form complaint
has been amended, it is of no further effect in the case.
Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008)(“An
amended complaint, once filed, normally supersedes the
antecedent complaint. Thereafter, the earlier complaint is a
dead letter and no longer performs any function in the case.”)
(internal citations and quotation marks omitted). In a
conventional setting, the original complaints cannot therefore
provide support for plaintiffs’ claim of fraudulent concealment.
But the protocols developed in this MDL proceeding are not
conventional. The Master Complaint is a mere “administrative
device” as it announces in the first sentence of the complaint.
The complaint includes language that “the adoption of this
Master Complaint will occur through the filing of a Short Form
Complaint where the individual Plaintiffs . . . will incorporate
this Master Complaint into their specific case.” I read that
language as meaning that the Master Complaint is incorporated
into the Short Form Complaint, but also to mean that the
42

III. CONCLUSION
For the reasons set forth more fully above, Defendants’
motion to dismiss and motion for judgment on the pleadings (Dkt.
No. 721) is GRANTED in part and DENIED in part to provide the
parties with a general framework to address dispositive motions
in the cases to which that framework is applicable.

In light of

the framework, the parties may now consider dispositive motion
practice in the specific cases for which this framework is
applicable.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

previously
superseded
especially
9(b) is in

applicable long form complaint is not necessarily
for purposes of motion to dismiss practice,
when the pleading of fraud in compliance with Rule
issue.
43