Evans v. Trinity Highway Products, LLC et al
Filing
43
MEMORANDUM OPINION AND ORDER denying 28 MOTION for Judgment on the Pleadings by Trinity Highway Products, LLC, Trinity Industries, Inc.; finding as moot 30 MOTION to Expedite (Motion for Expedited Consideration) by Trinity Highway Products, LLC , Trinity Industries, Inc. The Defendants' Motion for Judgment on the Pleadings, analyzed under the standard applied to Rule 12(b)(6) motions to dismiss, is DENIED. The Defendants also filed a Motion for Expedited Consideration of the Motion for Judgment on the Pleadings, ECF No. 30. As the court has ruled on the Motion for Judgment on the Pleadings, the Motion for Expedited Consideration is now MOOT.Signed by Chief District Judge Rebecca Beach Smith on 9/29/2015. (bgra)
UNITED
STATES
DISTRICT
EASTERN DISTRICT
Norfolk
OF
FILED
COURT
VIRGINIA
SEP 2 9 2015
Division
CLERKTuSD'iSTn.'CTCOURT
JOSE
EVANS &
_____NORFOU. VA
VICTORIA EVANS,
Plaintiffs,
CIVIL
v.
TRINITY INDUSTRIES,
TRINITY HIGHWAY
INC.
ACTION
NO.
2:15cv314
&
PRODUCTS,
LLC,
Defendants.
MEMORANDUM
This
matter
comes
Motion for Judgment on
OPINION
before
AND
the
the Pleadings
ORDER
court
on
the
("Motion")
Defendants'
and Memorandum
in Support thereof, filed on July 31, 2015. ECF Nos. 28, 29. The
Plaintiffs filed their Memorandum in Opposition to the Motion on
September 4,
2015,
on September 11,
ECF No.
2015.
40, and the Defendants filed a Reply
ECF No.
41.
The matter has been fully
briefed and is ripe for review.1 For the reasons that follow, the
Defendants'
Motion
I.
The
March 6,
is DENIED.
FACTUAL AND
Plaintiffs
2015,
in
the
PROCEDURAL
initially
Eastern
filed
District
BACKGROUND
their
of
Complaint
Texas.
Compl.,
on
ECF
1 On September 23, 2015, the Defendants filed a notice with the
court requesting that the Motion be set for a hearing. ECF
No. 42. The court finds that a hearing is unnecessary, as the
facts and legal arguments are adequately presented, and the
decisional process would not be aided significantly by oral
argument. See Fed. R. Civ. P. 78(b); E.D. Va. Loc. Civ. R. 7(J).
No.
1.
the
No.
The
Defendants
Northern
13.
District
On June 23,
instead,
subsequently
of
2 015,
transferred
Texas.
moved
Mot.
to
to
transfer
Change
venue
Venue,
to
ECF
the Texas court denied the motion and,
the
case
to
the
Eastern
District
of
Virginia. Order, ECF No. 20.
Because
for
judgment
the
matter
on
Procedure 12(c),
the
now
comes
pleadings
before
this
under
court
Federal
on
motion
of
Rule
a
Civil
the facts that are alleged in the Complaint are
assumed to be true and viewed in the light most favorable to the
Plaintiffs.2 The Plaintiffs have sued the Defendants for personal
injuries sustained in an automobile accident,
which occurred in
Cape Charles, Virginia, on November 23, 2011. Compl. 1 7.
The
2003
Plaintiffs,
Nissan
ET-Plus
Murano
a married couple,
veered
guardrail
"impact
off
the
head"
manufactured by the Defendants.
rammed
through
the
front
were
road
(the
Id.
injured when their
and
collided
UET-Plus"),
111
driver-side
7,
10.
door,
with
which
an
was
The guardrail
puncturing
the
passenger compartment. Id. 1 8. As a result of the accident, Mr.
Evans
sustained various
injuries
including a
fractured fibula,
and Mrs. Evans suffered a chest wall contusion. Id. H 9.
The
guardrail
ET-Plus
through
flatten out
like a
2 See infra Part II
is
the
intended,
impact
upon
head,
impact,
causing
ribbon and deflect
to
the
extrude
guardrail
the
to
away from the colliding
vehicle. In theory,
be
absorbed
vehicle
and
upon
Plaintiffs'
this "allows the energy from the impact to
prevent
impact."
crash
the
Id.
failed
guardrail
U
10.
to
The
do
from
penetrating
involved
ET-Plus
so
in
the
in
the
fashion,
as
dramatic
evidenced by the photographs included in the Complaint. Id. f 8.
The
Plaintiffs
Administration
ET-Plus
that
collisions.
allege
("FHWA")
originally
functioned
Id.
H 12.
that
Federal
approved
correctly
Thereafter,
the
to
a
version
minimize
however,
Highway
of
the
injuries
from
different versions of
the ET-Plus "started appearing along the National Highway System
and on the roads in Virginia."
Id.
fH 16-17.
One iteration,
which appeared sometime between 2000 and 2005, allegedly reduced
the
exit
(1.5")
gap
to one
of
the
inch
impact
(1").
head
Id.
from
one-and-a-half
U 16. A second variation,
inches
which
appeared in early 2005, allegedly reduced the size of the feeder
chute, from five inches (5") to four inches (4"), as well as the
overall
height of the ET-Plus.
Id.
1 17.
These modifications
decreased the amount of space in the impact head's chute for the
guardrail to feed through upon impact. Id. %22.
The Defendants
were
required
to
obtain
FHWA approval
not
only before the ET-Plus was initially used on public highways
and
roads,
could
be
Defendants
but
also
before
implemented.
wanted
to
Id.
alter
any changes
1
the
15.
In
ET-Plus
in
the
other
product
words,
design,
they
design
if
had
the
to
submit the modified product
crashworthiness
before
it
for additional
could
be
testing to determine
approved
by
the
FHWA
for
public use.
The Plaintiffs allege that the Defendants did not seek preapproval for the ET-Plus impact head modifications that occurred
in
the
early
2000s
Plaintiffs
contend
twice,
and
September
in
that
in
the
2005
early
Defendants
and
August
changes to the ET-Plus design,
earlier alterations
1111 19-20.
notified
In fact,
the
to
the
the
FHWA,
2005.
petitioned
2007,
impact
any
to
the
the
make
FHWA
certain
but did not make mention of the
head
in either
Plaintiffs allege,
or
Specifically,
other
request.
Id.
the Defendants never
government
entity
for
that
matter, of the earlier changes to the ET-Plus. Id. H 21.
Furthermore,
the
Plaintiffs
contend
that
these
design
changes, which the Defendants implemented without prior testing
and
FHWA
modified
authorization,
ET-Plus
no
were
longer
modifications
allegedly
impact;
instead of
then,
so
cause
substantial
functioned
the
diverting
id.
as
the
newer,
intended.
The
guardrail
to
lock
away
the
vehicle
dissipating the force of the collision,
violently into the vehicle,
that
H 23,
from
up
on
and
the guardrail is forced
as allegedly occurred in
the 2011 crash involving the Plaintiffs. Id. 1 8. The Plaintiffs
contend
that
unapproved,
"literally
secretly
hundreds
modified,
of
thousands
inherently
of
dangerous
these
ET-Plus
systems
have
been
in use
across
the
country
for
several years
preceding" the Plaintiffs' accident. Id. 1 25.
Three years after the accident
involving the Plaintiffs,
a
jury in the Eastern District of Texas rendered a verdict against
the
Defendants,
federal
False
in
a
qui
Claims
Act
tam
lawsuit
for
violations
Id^ % 24.
("FCA").
The
of
the
Plaintiffs
allege that the jury in the qui tam suit found the following:
(1)
the
Defendants
had
conducted
2005 of the modified ET-Plus system,
all failed;
(2)
and,
the
crash
tests
in
and the tests had
therefore,
Defendants
"knew
of
conditions created by its unapproved,
the
dangerous
modified ET-Plus
system," which was at that time ubiquitous along the
nation's highways and roads; and, thus,
(3)
that
when the
the
ET-Plus
the Defendants
Defendants
was
not
represented
modified
"knowingly made,
in
used,
to
such
the
a
FHWA
manner,
or caused to be
made or used, a false record or statement material to
a false or fraudulent claim."
Id. 11 24-25.3 The verdict of the jury in the qui tam case forms
the
crux
of
the
Plaintiffs'
argument
in
opposition
to
the
instant Motion.
3 See Jury Verdict,
Indus.,
Inc.,
No.
United States
2:12-CV-89
(E.D.
ex rel.
Tex.
Harman v.
Oct.
20,
Trinity
2014),
ECF
For
that
purposes
the
the
Plaintiffs'
statutes
was
of
of
ET-Plus.
Mem.
judgment on
of
Civil
the
doctrine
ET-Plus
for
are
Motion,
Supp.
at
personal
1.
Procedure
of
The
in
12(c).
modifications
Complaint
to
toll
the
the
seek
to Federal
however,
alleging
respect
to
applicable
therefore,
pursuant
concealment,
operated
the
argue
accident involving the
Plaintiffs,
with
the
as
Defendants,
The
conduct
Defendants
injury,
their favor,
fraudulent
fraudulent
the
time-barred by
than two years after the
the pleadings
Rule
Defendants'
claims
limitations
filed more
instant
invoke
that
the
unapproved
applicable
limitations period until the product's defects were revealed by
the verdict in the qui tam trial in 2014. Compl. 1 27.
II.
STANDARD OF
When analyzing a Rule
12(c)
REVIEW
motion
for judgment on
the
pleadings, courts apply the same standard as applied to a motion
to dismiss for failure to state a claim under Rule 12(b)(6). See
Edwards v.
1999).
City of Goldsboro,
"A Rule
12(c)
178 F.3d
motion tests
231,
only the
243-44
(4th Cir.
sufficiency of
the
complaint and does not resolve the merits of the plaintiff's
claims or any disputes of fact." Drager v.
F.3d 470, 474
702
F.3d
12(c)
No.
(4th Cir.
2014)
(citing Butler v. United States,
749,
752
(4th
motion,
the
allegations
570.
Cir.
PLIVA USA, Inc., 741
2012)).
must
Thus,
to
"advance
survive
the
a
Rule
plaintiff's
claim 'across the
v. McMahen,
line from conceivable to plausible.'"
684 F.3d 435,
Corp.
v. Twombly,
with
the
439 (4th Cir.
550 U.S.
statute
of
544,
570
limitations
2012)
(quoting Bell Atl.
(2007)).
is
a
Walters
Failure to comply
recognized
basis
for
dismissal on the pleadings.
See Brooks v. City of Winston-Salem,
85 F.3d 178,
1996)
statute of
181
(4th Cir.
limitations
has
("A complaint showing that the
run
...
is
the
most
situation in which the affirmative defense appears
of
the
pleading."
A.
Wright
Federal Practice & Procedure § 1357,
Miller,
(quoting
at 352
III.
Because
of
ECF
No.
20,
choice-of-law
court.
cases
28 U.S.C.
this
1404(a),
the
from
See Van Dusen v. Barrack,
. . . where
district
court
the
must
the
be
obligated
face
Arthur
R.
(1990))).
Eastern District
seek
to
court,
state
376 U.S.
defendants
&
see Order of June
transferee
Texas,
on the
LIMITATIONS
transferred from the
§
court,
rules
Charles
STATUTE OF
this case was
Texas under
5A
common
must
of
612,
639
the
2015,
apply
the
transfer,
apply
23,
the
transferor
(1964)
the
("[I]n
transferee
state
law
that
would have been applied if there had been no change of venue."
(emphasis
added));
Equip. Co.,
a
386 F.3d 581,
"borrowing
personal
Texas
Volvo
statute,"
injury actions
law,
but
also
Constr.
600
(4th Cir.
which
in Texas
under
Equip.
the
law
Am.,
Inc.
v.
CLM
2004). Texas has enacted
requires
to
N.
be
of
plaintiffs
timely not
the
place
bringing
only under
where
the
wrongful
act
occurred
Virginia. See Tex.
Both
243(A);
Civ.
Virginia
limitations
—
Civ.
this
Prac. & Rem.
and
Texas
for personal
Tex.
in
Prac.
case,
Commonwealth
of
Code § 71.031(a).
provide
a
injury actions.
& Rem.
the
two-year
See
Code § 16.003.
Va.
statute
Code
Moreover,
§
of
8.01-
in both
jurisdictions, a cause of action for personal injury accrues at
the time the injury is sustained.
See Va.
v.
1996)
R.V.,
933
S.W.2d
1,
accrues when a wrongful
4
(Tex.
Code § 8.01-230;
("[A]
cause
act causes some legal injury,
the fact of injury is not discovered until later,
all resulting damages have not yet occurred.").
allege
they
November 23,
were
injured
2011,
Compl.
limitations was tolled,
of
by
1
the
7,
so
S.V.
action
even if
and even if
The Plaintiffs
Defendants'
product
on
unless
statute
of
the
their claims were time-barred under both
Virginia and Texas law after November 23,
2013. Thus,
whether
judgment on the pleadings is warranted turns on whether the
doctrine of fraudulent concealment,
as recognized under Virginia
and Texas law, tolled the limitations period.
IV.
ANALYSIS
A. Fraudulent Concealment Under Virginia Law
Both
Plaintiffs'
parties
claims
focus
are
their
barred
briefing
by
the
on
Virginia
whether
statute
the
of
limitations. Virginia law provides that when a defendant "ustes]
any other direct or indirect means to obstruct the filing of an
action,
then the
time
that
such obstruction has
continued shall
not be counted as any part of the period within which the action
must be brought."
Court
has
held
Va.
that
Code
§ 8.01-229(D).
any plaintiff
who
The Virginia Supreme
seeks
to
rely upon
the
tolling provision in this code section "must establish that the
defendant
undertook
directly
file
or
her
action."
646
consist
character
affirmative
indirectly,
S.E.2d 644,
must
an
to
Grimes
(2001)
of
which
act
obstruct
v.
designed
the
Suzukawa,
misrepresentations,
involves
moral
intended,
plaintiff's
262
(emphasis added).
or
Va.
right
330,
332,
to
551
Such affirmative acts
and
turpitude,
"must
and
be
must
of
that
[actually]
have the effect of debarring or deterring the plaintiff from his
action."
340
Newman v.
(2005).
Mere
insufficient
to
Culpeper Nat'l
83-84,
89 S.E.
The
Walker,
silence,
toll
the
Bank v.
118,
270 Va.
or
argue
that
as
Complaint,
"affirmative
and,
the
from
Defendants'
but
toll
second,
period.
Id.
Co.,
Plaintiffs
the Virginia Code
the
acts,"
insufficient to
5-6;
the
first,
618 S.E.2d 336,
concealment,
Tidewater Improvement
of
reasons:
passive
limitations
section 8.01-229(D)
in
296-97,
is
(citing
119
Va.
73,
121 (1916)).
Defendants
alleged
291,
were
the
the
to
being
conduct
rather
mere
did
not
invoke
save their claims,
time-barred
did
not
omissions,
limitations period,
Defendants
cannot
see Mem.
have
the
for
two
amount
to
which
are
Supp.
at
requisite
intent to obstruct these Plaintiffs from bringing claims related
to the ET-Plus. See id.
at 6.4
1. Affirmative Acts of Misrepresentation
The
Plaintiffs
modifications
approval,
to
the
to
ET-Plus
made
the
the
motoring
failed to
inform the
taken
other
no
alleged
that
the
system without
Defendants
made
seeking prior FHWA
and knew that the modifications altered the ET-Plus in
such a way that
injuries
have
product
public.
FHWA of
action
to
capable
If
the
the
of
causing horrific
Defendants
had merely
design modifications
conceal
the
alleged
and had
defects,
such
conduct would not likely rise to the level of an affirmative act
of
misrepresentation.
applying
from
section
the
That
8.01-229(D)
affirmative
misrepresent.
Compare
339-40
(defendant
stolen
with
because
Newman,
270
misrepresented
and
Grimes,
262
(defendant concealed his
the
distinguish
commission
identification
statute),
is
thus
Va.
of
Va.
his
did
at
identity by
an
at
Virginia
passive
act
298,
to
618
S.E.2d
by
implicate
551
concealment
designed
identity
332,
courts
presenting
the
at
tolling
S.E.2d
at
646
wearing a mask during an
assault and thus did not implicate the tolling statute).
4
The
Defendants
do
not
appear
to
dispute
that
knowingly
concealing certain defects in a product's design, which are
alleged to have caused numerous deaths and grievous injuries,
would amount to conduct involving "moral turpitude." See Newman
v. Walker, 270 Va. 291, 296-97, 618 S.E.2d 336, 340 (2005).
10
However,
in this case,
the Plaintiffs have alleged that the
Defendants also petitioned the FHWA twice to obtain approval for
modifications
include
to
other
information
components
about
the
of
the
earlier
ET-Plus,
but
did
modifications.
not
Compl.
If 19-20. These petitions were made in September 2005 and August
2007,
see id. , after the Defendants allegedly conducted the five
crash
tests
t 24.
The
failed.
of
that
the
ET-Plus
Plaintiffs
Id.
Thus,
petitioning
ET-Plus,
the
the
but —
with the
allege
that
the Defendants
FHWA
to
make
critically —
Defendants
knew
to
modified
these
took
impact
head.
Id.
crash
tests
all
five
the
certain
affirmative
step of
modifications
to
the
not certain other modifications
be
dangerous.
Stated differently,
once the Defendants elected to petition the FHWA to make certain
modifications to the ET-Plus,
the
agency
modifications
by
that
they were required not to mislead
representing
had
been
that
made.
See
those
were
Overstreet
Life Ins. Co., 950 F.2d 931, 940 (4th Cir. 1991)
the
v.
Ky.
only
Cent.
(citing W. Page
Keeton, et al., Prosser & Keeton on the Law of Torts 737-38 (5th
ed.
1984)). Accepting the allegations in the Complaint as true,
and giving the Plaintiffs the benefit of all reasonable factual
inferences,
this
scenario
constitutes
an
affirmative
act
for
purposes of Virginia's doctrine of fraudulent concealment.
Plaintiffs bolster their allegations by citing the verdict
in the qui tam trial, in particular the finding by the jury that
11
the
Defendants
used,
a
"knowingly made,
false
record
or
used,
or
statement
caused
material
to
to
be
a
made
or
false
or
fraudulent claim" about the ET-Plus. Compl. U 24. Development of
the
factual record may be
necessary to determine
the
nature of
any false records or statements made by the Defendants,
evidence was before the jury in the
qui
this early stage of the proceedings,
the Plaintiffs'
warrant
the
affirmative
i.e.,
inference
act
to
that
conceal
the
the
tam trial.
Defendants
Plaintiffs'
the
defective,
motoring
public
but rather safe,
2.
—
that
Defendants
crash-tested,
of
ET-Plus
contend
act,"
that
even
they
if
have
the
to
affirmative act was undertaken with the
Plaintiffs
from
(emphasis
in
Defendants'
filing
a
original).
analysis
of
personal
The
concealment is "unduly limited,"
requirement
[P]laintiff[s']
at
that
Defendants
injuries
for
11.
12
by
not
argument,
the
have
alleged an
how
this
intent to obstruct these
injury
case
action."
actually
Reply
respond
law
on
Mem. Opp'n at 2,
fraudulent
and,
was
demonstrate
Plaintiffs
Virginia
action,
Claims
Plaintiffs
"failed
an
and approved.
Intent to Obstruct the Plaintiffs'
"affirmative
Id.
allegations
cause
the
at
undertook
Turning to the second vein of the Defendants'
no
However,
that the Defendants misrepresented to the FHWA —
extension,
and what
be
that
at
4
the
fraudulent
as "there is
aware
concealment
of
[the]
to apply."
The parties have cited no case law,
and the court is aware
of none,
in which the courts of the Commonwealth have considered
section
8.01-229(D)
action,
in which the
in
the
context
of
a
products
liability
alleged concealment occurred prior to the
injury in question and was not directly targeted at obstructing
the particular plaintiff's claims.5 However, as the Plaintiffs in
this case correctly point out, to interpret the statute to allow
only
concealment
after
an
injury
would
essentially
prevent
plaintiffs in products liability actions from ever asserting the
doctrine
of
fraudulent
concealment
to
toll
the
statute
of
limitations. Mem. Opp'n at 11 (citing Klein v. O'Neal, Inc., No.
7:03-CV-102-D, 2008 WL 2152030, at *5 (N.D. Tex. May 22, 2008)).
Although
Klein
is
an unpublished
decision
from
a different
5 c.f. Flick v. Wyeth, No. 3:12-cv-12, 2012 WL 4458181 (W.D. Va.
June
6,
2012)
8.01-229(D)
(federal
court
in Virginia
considered
section
in the context of a drug products liability case).
The plaintiff in Flick sued two drug companies, alleging that
their
products
caused
her
breast
cancer,
and
invoked
section 8.01-229 (D) to toll the statute of limitations. Id. at
*3. The court held that Virginia's doctrine of fraudulent
concealment did not
toll
the
limitations
period in
this
particular case,
evidence
sustain
showed
sales
because,
at the summary judgment stage,
that the defendants'
of
their
products
actions
[did]
"to increase
not
equate
the
and
to
affirmatively obstructing" the plaintiff's cause of action. Id.
at *4. Importantly, the court further found that the Plaintiff
had
not made
a
sufficient
proffer
of
evidence
that
the
drug
companies had undertaken affirmative acts of misrepresentation
designed to obstruct litigation. Id. at *5. Notably, though, the
court
did
not
find
that
the
statute
of
limitations
in
the
plaintiff's case had run on the grounds that the defendants were
not aware of her particular claim or did not intend specifically
to obstruct her from filing suit.
13
jurisdiction,
here.
that
court's
logic
In some circumstances,
a
is persuasive
and
applicable
defendant who knows he committed
a wrong will necessarily know the identity of the person harmed.
Such
is
the
case
in
the plaintiff's car,
Newman,
and in Grimes,
assaulted the plaintiff.
the
defendant's
patients,
nation's
in
is
defendant
driver
struck
where the defendant sexually
ubiquitous
appliance
highways),
the
But in a products liability suit,
product
sold
where
"it
stores,
would
be
(whether
or
prescribed
installed
virtually
when
along
impossible
to
the
for
a
defendant to know the identity of each individual who has been
harmed,"
Klein,
plaintiff
2008
WL
2152030,
at
*4,
or will be harmed.
in such a case could ever show that
affirmative action must
be
intended
to
obstruct
No
the
"alleged
th[e]
specific
plaintiff from filing her action." Reply at 5 (emphasis added).
Thus,
under
229(D),
the
Defendants'
interpretation
of
section
8.01-
fraudulent concealment could never operate to toll
the
limitations period in the vast majority of products liability
suits. The language of Grimes and Newman is not so restrictive
as to mandate this result.
In the present case,
Defendants
acted
members
the motoring public —
who
of
were
facts
injured
forming
to
the Plaintiffs have alleged that the
conceal
in car
the
basis
from
a
14
similarly
situated
including the Plaintiffs —
accidents
of
those
involving
claim
in
the
ET-Plus,
products
the
liability.
Furthermore,
the
Plaintiffs
misrepresentations
that
the
"prevented
injuries
defective
and
product,"
the Defendants'
expectation
motorists,
in
thus
that
Plaintiffs
question
caused
did
the
the
Defendants'
from
not
suspecting
stem
Plaintiffs
of
to
a
delay
1 27. Once the factual record is developed
the evidence might support the inference that
knowledge
whatsoever
of
potential
and for some purely legitimate objective,
proceedings,
from
affirmative misrepresentations were made with no
or
obstructing
doctrine
alleged
the
deaths
and
filing suit. Compl.
through discovery,
have
litigation.
the
However,
Plaintiffs
fraudulent
at
this
have
concealment
early
section
to
other than
stage
sufficiently
under
harm
in
the
pleaded
the
8.01-229(D)
to
toll the Virginia statute of limitations.
B.
Fraudulent
Neither
briefed
the
doctrine,
of
as
Plaintiffs
issue
it
limitations.
issue.
has
the
Concealment Under Texas
See Mem.
determined
of
nor
whether
exists under Texas
The Defendants urge
Supp.
that
at
the
4;
the
the
Law
Defendants
fraudulent
law,
also
tolls
the court not
Reply at
Plaintiffs'
7.
However,
claims
are
thoroughly
concealment
the
statute
to reach the
as
the
court
timely
under
Virginia law, it must now address the Texas limitations period.6
As
doctrine
in
of
Virginia,
fraudulent
Texas
state
concealment
6 See supra Part III
15
courts
to
avoid
also
a
recognize
limitations
the
bar.
"[W]hen a defendant has fraudulently concealed the facts forming
the basis of
to
run
the plaintiff's claim,
until
the
claimant,
discovered
or
Marwick v.
Harrison Cty.
(Tex.
1999)
should
have
limitations does not begin
using
reasonable
discovered
Hous.
Fin.
(citations omitted).
the
diligence,
injury."
Corp.,
988
KPMG
S.W.2d 746,
fraudulent concealment are
(1)
of
tort,
knowledge
tort,
and
underlying
(3)
(4)
(2)
the
defendant's
of
the
the plaintiff's reasonable reliance on the deception."
denied)
168 S.W.3d 243,
(citing Mitchell
430, 439
(Tex.
Energy
Ct. App. 1997)
251
(Tex. Ct. App.
Corp. v.
defendant's
active
when
the
suppression
defendant
Mitchell Energy Corp.,
law,
it
is
of
is
2005)
Bartlett,
(pet. denied)).
"[t]he gist of fraudulent concealment
Texas
the existence
the defendant's use of deception to conceal the tort,
Malone v. Sewell,
disclose
750
As articulated under Texas law,
"[t]he elements of
the
Peat
958 S.W.2d
Stated generally,
[under Texas law]
the
under
truth
a
or
duty
that
the
defendant
is the
failure
to
to
disclose."
958 S.W.2d at 439. Additionally,
sufficient
(pet.
knew
"[u]nder
it
has
wronged a person or group of persons, regardless whether it has
identified the individuals involved."
Klein,
2008 WL 2152030,
at
*5; see also Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex.
Ct. App. 1995)
allege
(to allege fraudulent concealment, plaintiff must
"(1) the
defendant
had
actual
16
knowledge
of
the wrong;
(2) a duty to disclose
the wrong;
and
(3)
a
fixed purpose
the
Plaintiffs
to
conceal the wrong.").
As
alleged
the
that
Defendants
harm
as
that
the
FHWA
to
court
has
the
modified
knew of
early
as
the
the
determined,
ET-Plus
defects
2005.
Defendants
conceal
already
made
and
Moreover,
was
the
the
affirmative
defect
from
defective,
potential
Plaintiffs
and
agency,
have
as
the
for grievous
alleged
misrepresentations
the
have
to
as
well
the
the
motoring public. As discussed above under Virginia law, it is of
no
consequence
that
the
Defendants
did not
intend to obstruct
these particular Plaintiffs from bringing their claims.
Finally,
the Plaintiffs have alleged that they relied on the Defendants'
misrepresentations because they "believ[ed]
and
not
that
defective,"
their
injuries
which
did
modified ET-Plus. Compl.
clearly
Texas
alleged
the
"prevented
not
f 27.
elements
result
from
from
the
defects
the Plaintiffs
fraudulent
suspecting"
in
the
have also
concealment
under
law.
IV.
CONCLUSION
For the reasons set forth above,
Judgment on the
to Rule 12(b)(6)
also
[them]
Thus,
of
the product was safe
filed a
Pleadings,
analyzed under the
motions to dismiss,7
Motion
for
the Defendants'
Expedited
7 See supra Part II.
17
Motion for
standard applied
is DENIED.
The Defendants
Consideration of
the
Motion
for
Judgment
on the
Pleadings.
ECF No.
30.
As
the
ruled on the Motion for Judgment on the Pleadings,
court
has
the Motion
for Expedited Consideration is now MOOT.
The Clerk is DIRECTED to forward a copy of this Memorandum
Opinion and Order to counsel for the parties.
IT IS
SO ORDERED.
_ ^ _ Isl
Rebecca Beach Smith
-$@r
ChiefJudge
REBECCA BEACH
CHIEF JUDGE
September ^\ , 2015
18
SMITH
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?