[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15832 JULY 8, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-01405-CV-T-26
IRIS RAIE, individually and as
personal representative of the estate
of Scott Raie and for Michael Raie,
a minor, through his parent, guardian
and next friend, JACKIE RAIE,
individually and as personal
representative of the estate of Scott
Raie, LILLIE POPE, individually,
Plaintiffs-Appellants,
versus
CHEMINOVA, INC., CHEMINOVA
A/S, and AURIGA INDUSTRIES A/S,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2003)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
The personal representatives of the estate of Scott Raie appeal the district
court’s dismissal of their wrongful death action on statute of limitations grounds. We
conclude Florida’s delayed discovery rule does not apply to this wrongful death
action, and Appellants are not entitled to equitable tolling under the doctrine of
American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756 (1974). We
therefore affirm.
I.
On the morning of July 3, 1997, Appellants’ neighborhood was sprayed with
Cheminova’s Fyfanon ULV, a malathion-based insecticide used as an ingredient in
Florida’s Medfly Eradication Program during 1997 and 1998. Decedent Scott Raie
spent that day working outside and was exposed to the Fyfanon. He subsequently
complained of skin irritation, nausea, diarrhea, headache, and lack of appetite. He
went to bed after midnight, and his mother found him dead the next morning. An
autopsy later determined the cause of death to be grand mal seizure.
Appellants did not immediately question this cause of death because Scott Raie
had suffered from a seizure condition. Given this medical condition, Appellants had
no reason to suspect a connection between his fatal seizure and the Fyfanon until
Appellant Iris Raie received a letter in May 2001 citing news reports that suggested
Fyfanon may have caused Scott Raie’s death.
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Appellants filed a wrongful death action on May 29, 2002, and Cheminova
removed the action based on diversity. Cheminova then moved to dismiss the
complaint on statute of limitations grounds. The district court found Appellants’
action to be untimely and dismissed the case. This appeal followed.
II.
We review de novo the district court’s order dismissing this action. See Covad
Comm. Co. v. BellSouth Corp., 299 F.3d 1272, 1279 (11th Cir. 2002). As this is a
diversity case, in the absence of a controlling decision from the Florida Supreme
Court, we are obligated to follow decisions from the Florida intermediate appellate
courts unless there is some persuasive indication that the Supreme Court would
decide the case differently. See McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir.
2002).
The Florida statute of limitations for a wrongful death action is two years. See
FLA. STAT. ch. 95.11(4)(d). The accrual date for a wrongful death action is the date
of death. See Fulton County Adm’r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999).
Ordinarily, therefore, Appellants would have had until July 4, 1999—two years from
the date of Scott Raie’s death—to commence this action. Absent tolling or some
other delay in the running of the statute of limitations, Appellants’ action was
untimely when it was filed on May 29, 2002.
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A.
Appellants’ first argument to rescue their wrongful death action relies upon
Florida’s delayed discovery doctrine. “The ‘delayed discovery’ doctrine generally
provides that a cause of action does not accrue until the plaintiff either knows or
reasonably should know of the tortious act giving rise to the cause of action.”
Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000). The delayed discovery
doctrine applies to the accrual of a cause of action; it does not toll the applicable
statute of limitations once the cause of action has accrued and the statute of
limitations has begun to run. See id. The delayed discovery rule was codified by the
Florida legislature in 1999. See FLA. STAT. ch. 95.031 (2002).
Appellants concede § 95.031 does not specifically extend the delayed
discovery doctrine to wrongful death actions. That statute provides as follows:
An action for products liability under s. 95.11(3) must be begun
within the period prescribed in this chapter, with the period running
from the date that the facts giving rise to the cause of action were
discovered, or should have been discovered with the exercise of due
diligence . . . . Under no circumstances may a claimant commence an
action for products liability, including a wrongful death action or any
other claim arising from personal injury or property damage caused by
a product, . . . if the harm was caused by exposure to or use of the
product more than 12 years after delivery of the product to its first
purchaser or lessee . . . .
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FLA. STAT. ch. 95.031(2)(b). The first part of this section codifies the delayed
discovery rule for products liability actions; the second part of the section is a twelve-
year statute of repose for products liability actions, including wrongful death actions
caused by a defective product. As the Supreme Court of Florida has recently
explained, there is no other statutory basis for the delayed discovery rule, except for
the statutes specifically governing fraud, products liability, professional and medical
malpractice, and intentional torts based on abuse, each of which permits postponing
accrual where there is delayed discovery. Davis v. Monahan, 832 So. 2d 708, 710
(Fla. 2002).
It is plain from the statutory text that the delayed discovery rule of
§ 95.031(2)(b) applies only to products liability actions under § 95.11(3), not
wrongful death actions which are governed by § 95.11(4)(d). Plaintiffs argue,
however, that it makes little sense for § 95.031(2)(b) to extend the statute of repose
to wrongful death actions without similarly extending the delayed discovery rule to
wrongful death actions. As a pure matter of statutory interpretation, this argument
fails because the statute simply does not extend the delayed discovery rule to
wrongful death actions. The Florida legislature clearly could have extended the
delayed discovery rule by adding a reference to wrongful death actions in the first
part of § 95.031(2)(b), just as it did in the later statute of repose provision. The
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legislature’s failure to extend the delayed discovery rule undermines Appellant’s
argument for applying that rule in this case. See Federal Ins. Co. v. Southwest Fla.
Ret. Ctr., Inc., 707 So. 2d 1119, 1122 (Fla. 1998) (holding that the Florida Supreme
Court would not write into a statute of limitations a delayed discovery rule when the
legislature itself had not done so explicitly, and that the legislature could make the
necessary statutory change if that were its intent).
Appellants further contend the Supreme Court of Florida has nonetheless
extended the delayed discovery doctrine beyond its statutory limits in cases that are
“similar to the statutory circumstances to which the doctrine applies.” See Monahan,
832 So. 2d at 710 (citing Hearndon, 767 So. 2d at 1185–86). In Hearndon, the
Supreme Court extended the delayed discovery doctrine to a claim of childhood
sexual abuse accompanied by traumatic amnesia that delayed the discovery of the
abuse. See Hearndon, 767 So. 2d at 1185–86. Monahan interpreted Hearndon to
extend the delayed discovery doctrine because sexual abuse claims under those
circumstances were similar to fraud claims. See Monahan, 832 So. 2d at 710.
Appellants view that similarity as analogous to the similarity between products
liability claims and wrongful death claims; they reason the delayed discovery doctrine
specifically applies to a products liability action, and their wrongful death claim could
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not be more similar to such an action because the wrongful death in this case was
caused by a defective product.
There are two defects in this argument. First, Monahan limits Hearndon so it
applies only to cases of childhood sexual abuse. Monahan reversed a district court
decision that had interpreted Hearndon broadly. See Monahan, 832 So. 2d at 710
(“No other Florida Court has interpreted Hearndon as broadly.”). Monahan thus
makes it clear that Hearndon’s expansion of the statutory delayed discovery doctrine
is as narrow as can be. More importantly, Monahan explained that the Hearndon
court reached its decision “only after considering the unique and sinister nature of
childhood sexual abuse.” Id. at 712; see also Hearndon, 767 So. 2d at 1186. In
addition, the Hearndon court noted that the Florida Legislature had statutorily
extended the delayed discovery rule to cases of childhood abuse with a 1992
amendment to FLA. STAT. ch. 95.11(7), though that amendment did not apply to the
plaintiff in Hearndon. Hearndon, 767 So. 2d at 1186. In short, Hearndon was an
exceedingly narrow decision that does not justify similar extensions of the delayed
discovery rule to instances beyond those for which the Florida Legislature provided
by statute.
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The second defect in Appellants’ argument is that a products liability case
simply is not similar to a wrongful death case under Florida law. “[The Florida
Supreme] Court has long characterized the [Wrongful Death] Act as creating a new
and distinct right of action from the right of action the decedent had prior to death.”
Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 111 (Fla. 2002) (citing Fla. E.
Coast Ry. v. McRoberts, 149 So. 631 (Fla. 1933)). In other words, the delayed
discovery doctrine might have applied to Scott Raie’s products liability action prior
to his death, but with his death, that cause of action was extinguished and there arose
an entirely different wrongful death cause of action in his survivors. It is crucial to
Appellants’ argument that a wrongful death action be deemed similar to a products
liability action, and Florida law simply will not countenance such treatment. Thus,
Appellants’ argument for extending the delayed discovery doctrine to their wrongful
death case fails.1
1
Appellants also attempt to argue fraudulent concealment, relying primarily on Berisford
v. Jack Eckerd Corp., 667 So. 2d 809 (Fla. Dist. Ct. App. 1995). Fraudulent concealment
requires the defendants to engage in the willful concealment of the cause of action using
fraudulent means to achieve that concealment. See id. at 811 (stating requirements for fraudulent
concealment). Compared to Berisford, the plaintiffs’ fraud allegations are insufficient to toll the
statute of limitations. In Berisford, the defendant pharmacy made an affirmative
misrepresentation in the decedent’s medical records, and the Court held that this
misrepresentation might have been intended to conceal the facts from the plaintiff, thereby
amounting to fraudulent concealment. Id. at 811–12. By contrast, the plaintiffs’ complaint in
this case does not allege any specific acts of misrepresentation or concealment that could support
a claim of fraudulent concealment. In fact, it appears that plaintiffs’ shotgun complaint actually
attempts to allege a cause of action for fraud, rather than allege the factual predicate for tolling
based on fraudulent concealment. This argument also fails.
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B.
Appellants also attempt to avoid the running of the statute of limitations by
relying on the rule of American Pipe. According to American Pipe, the filing of a
class action complaint tolls the statute of limitations on individual claims by class
members. See American Pipe, 414 U.S. at 550–52, 94 S. Ct. at 764–65; see also
Griffin v. Singletary, 17 F.3d 356, 361 (11th Cir. 1994). There is no dispute that
American Pipe has been followed in Florida state courts.
Appellants’ reliance on American Pipe is not straightforward, however,
because they attempt to extend the tolling period by piggybacking one pending class
action onto another. On May 9, 1999, the Rink v. Cheminova class action was filed;
at that time, 59 days remained on the two-year limitations period for Appellants’
wrongful death action. Sometime in 2001, while Rink was still pending, the Seabury
v. Cheminova class action was filed. On September 21, 2001, the Rink class was
denied class certification, though the Seabury class action remained pending. Then,
on May 29, 2002—more than 59 days after the Rink class action
terminated—Appellants filed their wrongful death action. If American Pipe tolls the
statute of limitations while Rink was pending, Appellants’ wrongful death action is
still untimely. What Appellants need is an additional tolling period based on the
Seabury class action.
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We need not decide the novel issue of whether such piggybacked tolling is
possible. Even if it were, piggybacking would be available only if Appellants were
part of the Seabury class action. As we explained supra, however, a wrongful death
action under Florida law is different in kind from any action based on a defective
product. Because of this difference, a class action asserting primarily product liability
claims would not include wrongful death claims unless wrongful death claims were
explicitly included in the class action. When pressed at oral argument, counsel for
Appellants could not demonstrate the Seabury class action explicitly included claims
for wrongful death. Rather, counsel merely adverted to the ambiguous class
definition in the Seabury complaint. Nor can we find anything in the record showing
that wrongful death claims were explicitly included in the Seabury class action. It is
not enough for Appellants to rely on only that ambiguous class definition to support
their argument for tolling under American Pipe; they must demonstrate that their
wrongful death action was included in the Seabury class action. Having failed to do
so, Appellants cannot take advantage of an additional tolling period based on
Seabury, even assuming such piggybacked tolling is legally available to them.
We therefore conclude Appellants’ wrongful death action was untimely under
Florida’s two-year statute of limitations. The running of that statute of limitations can
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be effectively halted by neither the delayed discovery rule nor equitable tolling under
American Pipe. The district court did not err in dismissing Appellants’ complaint.
AFFIRMED.
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