Prudential Insurance Co. of America v. United States Gypsum Co.

OPINION

HAROLD A. ACKERMAN, District Judge.

This case involves a dispute between plaintiff, The Prudential Insurance Company of America (“Prudential”), and a number of companies that once manufactured products containing asbestos and installed these products in buildings built or subsequently bought by Prudential. Alleging that the hazards of the in-place asbestos caused it to suffer serious economic injury, Prudential claims that defendants violated the Racketeering Influenced and Corrupt Organizations Act, as well as a number of its common law rights.

The defendant group is comprised of the following: W.R. Grace and Company-Conn. (“Grace”), United States Gypsum Company (“Gypsum”), The Celotex Corporation (“Celotex”), United States Mineral Products Company (“Mineral”), the Keene Corporation (“Keene”), Asbestospray Corporation (“Asbestospray”), and National Gypsum Company (“National Gypsum”). After several years of discovery, the defendants have made a number of motions.1

This opinion covers the following motions: (1) a motion by defendants Grace and U.S. Gypsum for summary judgment pursuant to Fed.R.Civ.P. 56(b) dismissing Prudential’s RICO claims; (2) a motion by Prudential to strike the defenses of statute of limitations pursuant to the doctrine of discovery rule, fraudulent concealment and/or equitable estoppel.

I will discuss these motions in turn.

First, though, I will describe the factual background as plaintiff offers it. When appropriate, I mention instances where particular defendants have explicitly contested certain facts. While some defendants have not contested the facts for the purposes of these motions, many of plaintiffs factual allegations are in dispute.

I. Factual Background

Prudential is both a property and casualty insurance underwriter and one of the largest real estate investors within the insurance industry. Throughout the relevant time period, Prudential has been a major participant in the development, purchase and financing of major commercial properties throughout the United States. Defendants are or were various companies engaged in' the sale of materials, including asbestos, to developers and builders.

In the 1930s and 1940s, some of the defendants as well as others in the asbestos industry began to study the health risks arising from asbestos. The initial studies were prompted by concern about employee exposure and occupational safety generally. Thus, in 1936, U.S. Gypsum, along with the corporate predecessor to defendant Grace, and other asbestos companies had experi*290mente performed at the Saranac Laboratory at Saranac Lake, New York. The Saranac Lake results showed that tumors developed in white mice exposed to high levels of asbestos. The reports also showed that no threshold limit for asbestos contamination existed. The Saranac studies, and the possible link of asbestos to cancer, were discussed at proceedings of the National Cancer Institute in January 1944, but the ultimate report was published only in 1951. The published report omitted references to human asbestosis and cancer, as well as the finding that there was no safe level of exposure to asbestos.2

In 1965, defendants Asbestospray, Mineral, Keene and Celotex began the Sprayed Mineral Fiber Manufacturers Association (“SMFMA”). The SMFMA conducted its own testing program regarding exposure to asbestos during its application. Although the results showed health problems associated with asbestos application, the group declined to release the test results. Asbestos-pray denies any concealment and instead characterizes the SMFMA’s work as follows: “[The SMFMA is] a trade association [established] to work on methods which would minimize the hazards of exposure and yet allow the continued use of sprayed-on asbestos-containing products.” Asbestospray further contends that SMFMA asked its technical committee to recommend industry standards for applying sprayed products so as to prevent health hazards.

At about the same time, defendants U.S. Gypsum, Celotex and National Gypsum organized as a group called the Gypsum Association. This group also allegedly performed teste and declined to disclose the results.

Until the 1960s, the defendants provided no warning labels to those that came in contact with their asbestos products. Eventually, U.S. Mineral crafted a warning that read as follows, and which was placed only on the company’s disposable product bags:

This product contains asbestos. Inhalation of asbestos dust over long periods may be harmful. If employees are exposed to dust during use in application, these employees should be equipped with adequate personal protective devices.

The warning did not mention hazards associated with the release of asbestos fibers from in-place asbestos products, and no warnings of any kind appeared in advertisements. For economic reasons, U.S. Mineral Products kept asbestos in its products despite the fact that “[i]t is possible to remove the dust.” In 1968, Asbestospray, Keene and Celotex began using U.S. Mineral’s warning. Beginning in 1968, defendant U.S. Gypsum began putting warnings on packages containing fireproofing, joint treatment, texture, and plaster products containing asbestos.

Also in the late 1960s, tests performed by defendants revealed the possibility of release of asbestos fiber during the application process. These test results were not released. Instead, certain defendants would assure fireproofing installers or building tenants that their asbestos was “locked in” and would not release, or that there is no health hazard associated with the proper spraying of asbestos on buildings. Moreover, through their lobbying activities, members of the asbestos industry assured the public that asbestos products in their buildings posed no health hazard. Yet a memorandum from Grace’s manager of fireproofing products to senior management stated that “we have an ethical obligation to get [asbestos] out.” An internal Keene memorandum stated:

Asbestos has long been known as a health hazard. It has been chiefly associated with asbestosis, a debilitating but not usually fatal lung disease. It was thought to threaten a relatively limited number of people who had heavy occupational or environmental exposure. Awareness of the danger led to a number of occupational safeguards which helped to reduce the known incidence of the disease.
More recent research has implicated asbestos as a cause, or important contributing factor in lung cancer. It has also shown that asbestos-related diseases can occur 20 to 40 years after exposure. There is some evidence that asbestos is involved in the death of people with little or no known exposure. Since asbestos use *291in the United States has increased at an extremely rapid rate in the last generation, there is a real possibility that asbestos may be a far more serious health hazard than previously suspected, and that it could affect a far larger number of people.

According to plaintiff, Grace, Keene and other defendants had by this time developed asbestos-free products yet continued to market their sprayed-on asbestos products.

In 1973, the Environmental Protection Agency (“EPA”) banned the spraying of certain asbestos-containing materials. Prudential contends that the EPA at this time did not address in-place asbestos-containing mateiials. In the wake of this decision, the asbestos industry attempted to persuade the public that in-place asbestos products were safe — that asbestos fibers were locked in and would not release into the air.

Some of the advertisements were taken out in Sweets Catalog, an industry publication distributed nationally that architects and subcontractors refer to in selecting products for buildings. In the publication, the defendants represented that their asbestos was locked in and would not release, that the asbestos-containing building materials were locked in, would not dust or flake and would last for the life of the building. Grace and U.S. Gypsum also advertised in Sweets.

Plaintiffs also allege that the defendants contacted health experts and architects with the specific intent to persuade them that asbestos building products posed no danger since they were locked in.

Prudential’s evidence shows that while defendants were making these assurances, they knew them to be false. Defendants allegedly knew that asbestos fibers are continually released over time under normal conditions, and that there is a greater propensity for release if in-place asbestos is disturbed. Some defendants also were allegedly aware of particular problems with their products that belied their representations. For example, a test run by U.S. Mineral showed that its fireproofing product “failed completely” in that the product has “the least resistance to vibration and flaking.” The results were never revealed.

Prudential contends that Asbestospray, Keene, U.S. Mineral and Celotex also suppressed the results of tests showing that their products released asbestos fibers while in place in buildings. The SMFMA’s tactics included the following: they contacted an expert, who studied the problem and concluded that “asbestos fibers are being added to the air stream passing over sprayed mineral fiber fireproofing.” The SMFMA wrote to the expert that the conclusion was “unnecessarily damaging” and asked him to rewrite it. When the report was rewritten to include the same substantive charges, the defendants declined to disclose the results. Instead, the SMFMA cited to two other tests allegedly showing that their products posed no health hazard.

Results of tests done on in-place asbestos by Grace were publicly disclosed, but the methodology and scope of the tests were limited. An internal Grace memorandum stated the following:

Our fireproofing position will become desperate if we are not successful with our upcoming fire test at UL. Accordingly, we should formalize our position with respect to asbestos and be prepared to both submit written comments and appear at the public hearings. We have air sampling data ... reporting the concentrations of airborne asbestos during and after Monokote III spraying. What we do not have is any evidence that these concentrations are or are not hazardous.

Still, Grace publicly proclaimed that its asbestos-materials were safe.

In 1970, defendant National Gypsum, Jim Walter Corporation (the parent company of Celotex), together with other corporations, formed the Asbestos Information Association of North America (AIA/NA). The purpose of the group was “to propagandize asbestos’ good points and attempt to explain away the hazards associated with that substance.” U.S. Gypsum and Grace sent representatives to AIA/NA meetings.

During the course of its operations, AIA/NA placed stories about asbestos in newspapers and • magazines, distributed copies of medical papers and speeches purporting to represent the dangers of asbestos, *292and, all around, attempted to persuade the relevant public that asbestos was not the dangerous material that others said it was. Prudential contends that the work of the AIA/NA convinced people that in-place asbestos-containing products were safe.

Finally, Prudential alleges the following acts by defendants:

(1) Throughout the 1970s, when contacted by architects, installers, building owners and government agencies, defendants represented that in-place asbestos posed no health risk.

(2) In 1979, Areadius Zielinski, an employee of the Architects and Engineering Department for Prudential’s home office properties, reviewed the state of Prudential’s buildings to ensure that Prudential would comply with regulations if and when Prudential had to remove any asbestos. He wrote defendant U.S. Gypsum requesting technical information about a few specific products, but raising no questions about potential health problems. U.S. Gypsum responded with unsolicited assurances about its products:

The small amount of asbestos fibers is securely embedded in the mortar matrix and should not be released to the air unless it is forcefully pulverized or abraded. I am not aware of, nor can I conceive of, a hazardous exposure resulting from properly installed and maintained [asbestos containing material].

(8) In 1983, the EPA mentioned in a guidance document called the Blue Book that commercial buildings should consider operations and maintenance programs to monitor in-place asbestos. In response to the Blue Book, in 1984, defendants Grace, U.S. Gypsum, National Gypsum, Celotex and Keene joined with AIA/NA’s special counsel and formed the Safe Buildings Alliance (“SBA”), which focused on problems associated with asbestos in buildings. In 1984 the SBA published and distributed a booklet called “What You Should Know About Asbestos in Buildings.” The booklet stated that “experts believe that removing asbestos-containing materials in buildings often does more harm than good” and that proper removal does not pose a potential health hazard. In 1986, the booklet was revised and targeted towards building owners and managers.

II. Standard for Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir.1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism’d, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Put differently, “summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988). An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248, 106 S.Ct. at 2510.

Within the framework set out above, the moving party essentially bears two burdens: First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This may be done either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should *293not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 106 S.Ct. 2548, 2556-58, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970); Advisory Committee’s Notes on Fed.Rule of Civ.Pro. 56(e), 1963 Amendment; see generally C. Wright, A Miller, & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).

III. Discussion

A. Defendants’ motion for summary judgment dismissing plaintiff’s RICO claims

This particular motion addresses the only federal claim in this litigation: plaintiffs contention that defendants conducted an enterprise through a pattern of racketeering activity, thereby causing injury to plaintiffs business or property. 18 U.S.C. § 1962(e). For the purposes of this motion, defendants do not contest that they conducted an enterprise through a pattern of racketeering activity. The sole dispute is whether the plaintiffs have demonstrated causation sufficient to defeat a summary judgment motion.

In a case arising under § 1962(c), a plaintiff must show “(1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (citing O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir. 1989)). The RICO statute lists a number of acts that can constitute “predicate acts” composing a pattern of racketeering activity. Prudential alleges that defendants engaged in the predicate acts of mail and wire fraud, see 18 U.S.C. §§ 1961(1)(B), 1341 and 1343.

The causation requirement derives from RICO section 1964(c), which provides that a plaintiff has standing to bring a RICO claim when he or she has been “injured in his business or property by reason of’ the racketeering activity. Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir.1991). A causation requirement may also be found in the elements of the RICO predicate acts. While the statute does not further address the causation requirement, case law has filled in the blanks.

The “by reason of’ language of section 1964 means, at the most general level, that the defendant’s acts must have in fact caused the RICO injury. But a plaintiff must demonstrate not only eausation-in-fact, he or she must also demonstrate proximate, or legal causation. In the context of RICO, proximate causation has been defined as follows: “The RICO pattern or acts proximately cause a plaintiffs injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht at 24 (citing Bonsignore v. City of New York, 683 F.2d 635, 637 (2d Cir.1982) and Restatement (Second) of Torts §§ 431, 435 comment b (1965)) (adopted by Third Circuit in Brittingham, supra). Similarly, in Brandenburg v. Seidel, 859 F.2d 1179 (4th Cir.1988), the Court of Appeals pointed out that, in making out a civil RICO claim, a plaintiff must demonstrate “proximate” cause, and proximate clause involves an inquiry into whether the defendant’s conduct has been “so significant and important a cause that the defendant should be held responsible.” Id. at 1189 (quoting Prosser and Keeton, Torts, § 42 p. 272 (general principle) (5th ed. 1984)). This determination requires the court to take into account “such factors as the foreseeability of the particular injury, the intervention of other independent causes, and the factual directness of the causal connection.” Brandenburg at 1189.

Prudential argues that the causation analysis must begin and end with traditional proximate cause principles, and that the question is whether plaintiff has demonstrated a causal link between defendants acts or omissions and its injuries. Thus, in Prudential’s view, there is no requirement that the plaintiff actually relied to its detriment on the defendants’ alleged mail or wire fraud. Defendants, however, argue that in the context of mail and wire fraud, a plaintiff must prove actual, detrimental reliance in order to state a civil RICO claim.

The question is, then, what does the proximate causation requirement mean in the context of RICO predicate acts of mail and wire fraud. In other words, in the context of *294RICO predicate acts of mail or wire fraud, how should the doctrine of proximate cause be informed?

Several courts have addressed this question, and the majority have agreed with defendants’ argument. In Brandenburg, supra, the Fourth Circuit began its mail and wire fraud analysis with the proposition that a causal nexus is required to state a RICO claim, and ended with the conclusion that “detrimental reliance by the victim ... is necessary to establish injury to business or property ‘by reason’ of a predicate act of mail fraud within the meaning of § 1964(c).” Id. at 1188 n. 10. In other words, the Fourth Circuit interpreted proximate causation in the mail and wire fraud context to require plaintiff to demonstrate detrimental reliance.

This approach has been followed by other circuits as well. In a similar case, the Eleventh Circuit upheld the dismissal of a RICO mail fraud claim because “[plaintiffs [did] not allege that they, in any way, relied upon the false reports sent to the government or upon the distorted financial statements.” O’Malley v. O’Neill, 887 F.2d 1557, 1563 (11th Cir.1989). The O’Malley court also made this statement while interpreting proximate cause principles. Similarly, several district courts within this Circuit recently held that in order to state a RICO claim, the plaintiff must show reliance on the underlying mail or wire fraud. In Rosenstein v. CPC International, Inc., 1991 W.L. 1783 (E.D.Pa. January 8, 1991) the district judge wrote that “the ‘by reason of language [of RICO] imputes [a] reliance requirement in the mail and wire fraud context.” In that case, even though the defendant had made the representations about its products through a national advertisement campaign,, plaintiffs could not escape showing actual detrimental reliance. The court held that'in order to prevail,

it may be relevant to determine for each class member whether they saw the advertisement; whether they believed the advertisement; whether they would have purchased Mazóla notwithstanding the advertisement; whether they were concerned about their serum cholesterol levels; whether they interpreted the advertisements similarly to named plaintiffs; and whether they purchased Mazóla for reasons unrelated to the cholesterol lowering claims.

Rosenstein. Similarly, in Strain v. NutriSystem, Inc., 1990 W.L. 209325 (E.D.Pa. 1990), a district court was faced with plaintiffs who claimed that defendant misrepresented their weight loss program through its advertising campaign. The court wrote:

In order to recover plaintiffs must establish that they were induced to enroll in the Nutri-System program because they relied on the allegedly fraudulent advertisements and representations and an injury to property or business was sustained. Establishing the causal relationship between the alleged § 1962 violation and the § 1964(c) injury requires the proof of reliance.

Strain. See also Morley v. Cohen 888 F.2d 1006, 1011 (4th Cir.1989) (“while ... it is not necessary to establish detrimental reliance by the victim in order to make out a violation of the federal mail fraud statute, such reliance is necessary to establish injury to business or property by reason of a predicate act of mail fraud within the meaning of § 1964(c)”) (citing Brandenburg, supra).

The approach — supported by the instant defendants — has been described as consistent with “the clear weight of authority”, Rosenstein. Nonetheless — and it is a close question — I respectfully disagree with these decisions and will decline to read into RICO mail fraud cases a requirement of actual detrimental reasonable reliance.

It is unclear why courts have been reading an “actual detrimental reliance” requirement into RICO. Most likely, these courts were influenced by their view of the nature of common law fraud generally, and were proceeding to read those assumptions into the “by reason of’ requirement of RICO section 1964(c). As one commentator has put it, “[e]ither by classifying mail fraud as common-law fraud or by reading reliance into the ‘by reason of provision of the RICO statute, these courts require that reliance be both alleged and proven.” C.C. Genco, Note, Whatever Happened to Durland? Mail Fraud, RICO, and Justifiable Reliance, 68 N.D.L.R. 333, 373 (1992). The assumptions, *295though, are incorrect. Id. Actual detrimental reliance is not an element of the underlying predicate crimes of mail and wire fraud.

In order to prove common-law fraud and securities fraud, a plaintiff generally must establish detrimental reliance, and too attenuated a relationship will not suffice to state a claim.3 But the RICO predicate acts of mail and wire do not require actual reliance. Rather, a plaintiff may prove mail fraud by establishing that: (1) defendants engaged in a scheme to defraud, (2) the defendants or someone associated with the scheme used the mails for the scheme, and (3) the use of the mails was for the purpose of effectuating the scheme. Armco Industrial Credit Corporation v. SLT Warehouse Company, 782 F.2d 475, 481-82 (5th Cir. 1986). There simply is no requirement of detrimental reliance. Id. As the Seventh Circuit has put it, “[t]he aim of the mail and wire fraud statutes is to punish the scheme to defraud rather than the end result.” United States v. Sanders, 893 F.2d 133, 138 (7th Cir.1990) (citations omitted); see also Note, supra at 365 (“the [mail and wire fraud statutes do] not require that the victim of the scheme actually lose money or property.”)

Thus, if courts are not finding a reliance requirement in the elements of the predicate acts, they are finding it in the “by reason of’ requirement of § 1964(c). However, as outlined above, the “by reason of’ language in RICO is to be interpreted in keeping with general tort principles of proximate causation. Of course, “[t]he degree of proximate causality required to recover damages ... will vary with the underlying violation.” Holmes v. Securities Investor Protection Corporation, — U.S.-,-, 112 S.Ct. 1311, 1328, 117 L.Ed.2d 532 (1992) (Scalia, J. concurring in the judgment). Nonetheless, since the causation requirement is in the RICO statute itself, in determining the “policies” that inform the proximate cause question, the court should be guided in the first instance by the policies of RICO generally, and secondarily by the predicate statutory crimes. At any rate, both of these principles require a finding that actual detrimental reliance is not a necessary element of a RICO claim involving mail and wire fraud.

First, the policies behind RICO itself negate such a requirement. Several years ago, the Supreme Court broadly interpreted the purposes and structure of the federal civil RICO provisions, rejecting many commentators’ .urgings of a restrictive interpretation. It found that Congress purposefully drafted a broad statute designed to encompass, prohibit, and punish activity that it defined as racketeering. Sedima, S.P.R.L. v. Imrex Co. Inc., 473 U.S. 479, 499, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985). While cognizant of the fact that civil RICO was being used to encompass activity well beyond the range of the “archetypal, intimidating mobster,” Id. at 499, 105 S.Ct. at 3286, the Supreme Court held that this reality was not contrary to Congress’s intent. The Court stated that “the ‘extraordinary’ uses to which civil RICO has been put appear to be primarily the result of the breadth of the predicate offenses, in particular the inclusion of wire, mail, and securities fraud, and the failure of Congress and the courts to develop a meaningful concept of ‘pattern’.” Id. at 500, 105 S.Ct. at 3287. If this was Congress’ intent, the Court held, it was not for the courts to frustrate it. Thus, the Court stated that Congress did not intend RICO to be hindered by “strict requirements [of] ‘standing’ to sue and ‘proximate cause’, as were present in the antitrust area from which RICO grew.” Sedima at 498, 105 S.Ct. at 3286. As one court stated in explaining these principles, and its effect on “proximate cause”:

This rejection [of the antitrust standard] clearly relaxes the RICO proximate cause test from that applied in antitrust, by focussing inquiry on more direct cause and effect relationships than the necessarily more attenuated ones implied by the amorphous concepts of ‘anti-competitive’ injury and violation. But it is plain that with the matter of RICO injury and RICO violation thus settled, the Sedima Court assumed that the normal proximate cause inquiry *296into their relationship would be appropriate.

Brandenburg, supra, at 1189 n. 11.

The Supreme Court recently affirmed these principles. In Holmes, supra, the Court explicitly addressed the “by reason of’ requirement of RICO. In so doing, it relied on principles of proximate cause generally. Writing for the Court, Justice Souter stated:

The notion of proximate cause reflects ideas of what justice demands, or what is administratively possible and convenient____ Accordingly, among the many shapes this concept took at common law was a demand for some direct relation between the injury asserted and the injurious conduct alleged. Thus, a plaintiff who complained of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts was generally said to stand at too remote a distance to recover.

Holmes — U.S. at-, 112 S.Ct. at 1318. In that particular ease, the Court held that “[allowing suits by those injured only indirectly would open the door to massive and complex damages litigation which would not only burden the courts but also undermine the effectiveness of treble-damages suits.” Id. — U.S. at -, 112 S.Ct. at 1321. Elaborating on Justice Souter’s analysis, Justice O’Connor discussed an issue not addressed in the majority opinion — whether a nonpurchaser or nonseller of securities may bring suit under section 1964(c). She wrote that “[although the words ‘injury in one’s business or property’ and ‘by reason of are words of limitation, they do not categorically exclude nonpurchasers and nonsellers of securities from the universe of RICO plaintiffs.” Id. — U.S. at-, 112 S.Ct. at 1324

. These motions are:

(1) Defendants' motion to dismiss Prudential’s RICO claims on substantive grounds;
(2) Prudential's motion to strike defendants' statute of limitations defenses based on the doctrines of the discovery rule, fraudulent concealment and equitable estoppel;
(3) Defendants United States Gypsum and Asbestospray's motions to dismiss the RICO claims based on the statute of limitations;
(4) Defendants’ motion to dismiss plaintiffs' amended complaint on the basis of the statute of limitations;
(5) Defendants' motion to dismiss Prudential's complaint on the basis of the Statutes of Repose;
(6) Defendants’ motion to dismiss Prudential's Breach of Warranty claims;
(7) Defendants’ motion to dismiss Prudential's Deceptive Trade Practices Act claims.

. U.S. Gypsum explicitly denies any involvement in concealing the Saranac Lake documents.

. Under the federal securities laws, detrimental reliance may be presumed by the "fraud on the market” theory.