Evans v. Trinity Highway Products, LLC et al, No. 2:2015cv00314 - Document 43 (E.D. Va. 2015)
Court Description: 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)
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Evans v. Trinity Highway Products, LLC et al Doc. 43 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). Dockets.Justia.com 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
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