United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-21152
Summary Calendar
JOHN P. EBERHARDT,
Plaintiff-Appellant,
versus
MERCK & COMPANY INC.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-1380
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis (IFP), Texas
prisoner (#1083045) John P. Eberhardt filed a products-liability
complaint against Merck & Company, Inc. (Merck), the
manufacturers of the medication Vioxx. Eberhardt alleged that he
was prescribed Vioxx in October 1999 and that he was continually
treated with the medication until mid August 2000, “when at the
age of 41 years, [he] suffered congestive heart failure.”
The district court denied a motion to dismiss by Merck, but
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-21152
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nevertheless dismissed the complaint based on a sua sponte
determination that the complaint was not filed within the
applicable statute of limitations. The court determined that
because Eberhardt’s complaint was time-barred, it failed to state
a claim upon which relief could be granted.
We review the dismissal of a complaint under FED. R. CIV. P.
12(b)(6) de novo, applying the same standard as that used by the
district court. Piotrowski v. City of Houston, 51 F.3d 512, 514
(5th Cir. 1995). “In determining whether to grant a motion to
dismiss, the district court must not go outside the pleadings and
must accept all well-pleaded facts as true, viewing those facts
most favorably to the plaintiff.” Scanlan v. Texas A&M Univ.,
343 F.3d 533, 536 (5th Cir. 2003). “A dismissal will not be
affirmed if the allegations support relief on any possible
theory.” Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th
Cir. 1994).
Although the defense of limitations usually must be raised
by the defendants in the district court, it also may be raised
sua sponte by the district court. Jackson v. Johnson, 950 F.2d
263, 265 (5th Cir. 1992)(civil rights case). Because this is a
diversity case arising under state law, the limitations period
for a Texas personal-injury action is applicable. See Vaught v.
Showa Denko K.K., 107 F.3d 1137, 1139-40 (5th Cir. 1997). Thus,
Eberhardt’s action must have been filed “not later than two years
No. 03-21152
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after the day the cause of action accrue[d].” Id. (internal
quotations and citation omitted).
“In general, a cause of action accrues and the limitations
period begins when a wrongful act causes a legal injury.” Texas
Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F.3d 644, 649
(5th Cir. 2001). The “discovery rule” is an exception under
which “the limitations period is tolled until the plaintiff
discovers, or through the exercise of reasonable diligence should
have discovered, the nature of [his] injury.” Vaught, 107 F.3d
at 1140. Discovery “occurs when a plaintiff ha[s] knowledge of
such facts as would cause a reasonably prudent person to make an
inquiry that would lead to discovery of the cause of action.”
Id. (internal quotations omitted).
Eberhardt argues that the limitations period should have
been tolled until the Spring of 2001, when he discovered that his
heart failure was connected to Vioxx. He contends that he acted
diligently in trying to discover what had caused his heart
failure, and he makes a myriad of factual assertions in support
of this contention. Eberhardt also argues, for the first time on
appeal, that his claim should have been tolled under Texas’s
“Fraudulent Concealment Law.”
“Arguments not raised in the district court cannot be
asserted for the first time on appeal.” Greenberg v. Crossroads
Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004). This “is
especially true where the assertion first raised on appeal is
No. 03-21152
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factual.” Greenberg, 364 F.3d at 669. Accordingly, we do not
consider Eberhardt’s fraudulent-concealment claim or the factual
allegations he makes in support of his argument that he
diligently investigated the source of his heart failure.
Nevertheless, the record does not support the conclusion
that Eberhardt’s duty to investigate necessarily was triggered
when the doctor discontinued his treatment with Vioxx. Although
the district court determined that Eberhardt’s physician stopped
giving Eberhardt Vioxx because he developed heart problems, the
record does not, however, support this inference. In his
complaint, Eberhardt alleged only that he was treated with Vioxx
“until mid August 2000, “when at the age of 41 years, [he]
suffered congestive heart failure.” This allegation must be
construed in the light most favorable to Eberhardt. See Scanlan,
343 F.3d at 536. Thus, it cannot be said that discontinuation of
Vioxx, without more, would have caused a reasonably prudent
person to make an inquiry that would have led to the discovery of
the cause of action. See Vaught, 107 F.3d at 1140.
Merck argues “that it is beyond dispute that the information
that Appellant contends revealed a possible association between
the use of VIOXX and his injury was publicly known long before
the critical April 25, 2001 date.” It argues that “articles that
Appellant produced and cited himself [in response to Merck’s
motion to dismiss] confirm that, prior to April 25, 2001,
Appellant either did discover or, if not, should have discovered,
No. 03-21152
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the information that he contends shows an association between
VIOXX and his alleged injury.”
We have held that extensive media coverage may trigger the
running of the statute of limitations. Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 403-04 (5th Cir. 1998).
However, Eberhardt’s citations do not reflect the sort of media
coverage that triggered the running of the statute of limitations
in Winters, particularly given that the articles were not
included in the record.
Merck also cites its own newspaper articles in support of
its media-coverage argument, and asks this court to take judicial
notice of those articles. “A judicially noticed fact must be one
not subject to reasonable dispute.” FED. R. EVID. 201(b); see
also Taylor v. Charter Medical Corp., 162 F.3d 827, 831 (5th Cir.
1998)(judicial-notice rule does not authorize a court to make
legal determinations). We therefore decline to consider the
articles cited by Merck.
The present record is devoid of facts establishing when
Eberhardt had the knowledge requisite to trigger the running of
the statute of limitations. Accordingly, we VACATE the judgment
and REMAND the case for further development of the factual record
in light of the applicable tolling provision.
Eberhardt v. Merck & Co Inc
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-08-05
Citations: 106 F. App'x 277
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