                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 13-3167
                                   _____________

                                  SHERYL SMITH,
                                      Appellant

                                          v.

                           ANDREW MCGILL WHELAN
                                _____________

                   On Appeal from the United States District Court
                              for the District of Delaware
                           (D.C. Civil No. 1-11-cv-01188)
                   District Judge: Honorable Richard G. Andrews
                                      ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a)

                                   March 20, 2014


     Before:   CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges


                                (Filed: May 7, 2014)
                                    ___________

                                     OPINION
                                    ___________

VANASKIE, Circuit Judge

      Sheryl Smith appeals the District Court’s grant of summary judgment in favor of

defendant-appellee Andrew McGill Whelan, her former boyfriend, on claims of
negligence, fraud, and misrepresentation arising from his transmission of genital herpes

(“HSV-2”) to her. The District Court determined that Smith’s suit, brought more than

three years after Smith was diagnosed with HSV-2, was barred by the relevant Delaware

statutes of limitations. Smith argues that there are genuine disputes of facts material to

whether Whelan’s conduct throughout their relationship constituted fraudulent

concealment of his tortious conduct, precluding summary adjudication of the limitations

question. We disagree, and will therefore affirm the District Court’s judgment.

                                             I.

       Because we write primarily for the parties, we will recount only those facts

necessary to our analysis.

       Smith and Whelan began dating in May 2008 and had unprotected sexual

intercourse for the first time on May 3, 2008. Smith alleges that Whelan was aware at the

time that he was a carrier of HSV-2, but did not inform her prior to their sexual contact.

Smith testified at her deposition that she requested that Whelan use a condom during

sexual intercourse following their second date on May 14, 2008. In response, Whelan

informed her that he was sterile and there was therefore “no reason” for them to use a

condom. App. 269.

       On October 10, 2008, when the two were still dating, Smith’s gynecologist

informed her that she had tested positive for HSV-2. Smith asked her gynecologist

whether he believed Whelan had given it to her, as she “hadn’t had sex with anybody in a

really long time except for [Whelan].” App. 303-04. Her gynecologist informed her that

                                             2
it was possible. Smith acknowledged at her deposition that, following the diagnosis, she

had recognized “[l]ogically” that Whelan was “the only person I’ve slept with for years;

so obviously that’s where this came from,” but testified that she also “was so distraught

that I didn’t know who or what to think of or to suspect.” App. 304.

       Smith told Whelan of her HSV-2 diagnosis later the same day. Smith testified that

Whelan reacted compassionately to the news, telling her that “he didn’t care, that it didn’t

matter to him, that he still loved me, thought I was beautiful, gave me hugs and kisses

and was very tender and very supportive.” App. 309. Whelan also told Smith that he

“wasn’t sick,” and that “everything was okay with him,” which Smith took to mean that

Whelan did not have HSV-2 and thus could not have been responsible for transmitting it

to her. Id. Smith testified that, despite her suspicions that Whelan may have transmitted

the disease to her, she “didn’t want to come out and straight out accuse him without

knowing for sure that that’s the truth.” App. 304.

       Following her diagnosis, Smith suggested that the two refrain from sexual contact

during periods when Smith was undergoing a herpes-related flare-up, in order to prevent

Whelan from contracting the virus. Because of Whelan’s acquiescence in this pattern of

conduct and his failure to disclose that he had been infected with HSV-2 himself prior to

sexual contact with Smith, Smith inferred that Whelan was not the source of her

infection.

       Smith testified that, over a year and a half later, on June 20, 2010, Whelan

accidentally let slip that he had “been dealing with [HSV-2] for a long time.” App. 331.

                                             3
When pressed about his offhand comment, Whelan admitted to Smith that he had been

aware that he had HSV-2 since college, several decades prior to the beginning of their

relationship. Three months later, in September of 2010, Whelan and Smith separated.

Smith brought this action on December 1, 2011.

                                              II.

         The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a

District Court’s grant of summary judgment. Doe v. Abington Friends Sch., 480 F.3d

252, 256 (3d Cir. 2007).

         Under Delaware law, personal injury actions are governed by a two-year statute of

limitations. Del. Code Ann. tit. 10, § 8119 (West); Cole v. Delaware League for Planned

Parenthood, Inc., 530 A.2d 1119, 1123 (Del. 1987) (“Section 8119 . . . applies to all

claims for personal injury, without exception, and regardless of the theoretical basis

underlying the requested remedy.”) (internal quotation marks omitted). Fraud and

misrepresentation actions are governed by a three-year statute of limitations. Del. Code

Ann. tit. 10, § 8106 (West); Krahmer v. Christie’s Inc., 903 A.2d 773, 778 (Del. Ch.

2006).

         “In addressing when an action is time-barred, a necessary first step in the analysis

is determining the time when the action accrued.” U.S. Cellular Inv. Co. of Allentown v.

Bell Atl. Mobile Sys., Inc., 677 A.2d 497, 503 (Del. 1996). Under Delaware law, “[a]

cause of action in tort accrues at the time of injury.” Kaufman v. C.L. McCabe & Sons,

                                               4
Inc., 603 A.2d 831, 834 (Del. 1992). The District Court concluded that Smith’s causes of

action accrued at the time of her diagnosis on October 10, 2008, and Smith does not

contest this conclusion. Accordingly, we shall use October 10, 2008 as the date when

Smith’s causes of action accrued.

       “Even after a cause of action accrues, the running of the limitations period can be

tolled in certain limited circumstances.” Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860

A.2d 312, 319 (Del. 2004) (internal quotations omitted). Under Delaware law, a

defendant’s “fraudulent concealment” may toll the running of the statute of limitations

until a plaintiff’s “rights are discovered or could have been discovered by the exercise of

reasonable diligence.” Giordano v. Czerwinski, 216 A.2d 874, 876 (Del. 1966). Smith

urges that Whelan’s conduct from the date of her diagnosis on October 10, 2008 through

June 20, 2010, the date on which Whelan accidentally disclosed to her that he had been

dealing with HSV-2 “for a long time,” constituted fraudulent concealment of his tortious

conduct, which should toll the running of the statute of limitations.

       For a statute of limitations to be tolled due to a defendant’s fraudulent

concealment, “[f]irst it must be shown that there is sufficient evidence from which a

judge or jury can find that facts were fraudulently concealed.” Studiengesellschaft Kohle,

mbH v. Hercules, Inc., 748 F. Supp. 247, 253 (D. Del. 1990). Once a claimant

demonstrates that the defendant engaged in “an affirmative act” of fraudulent

concealment, the court turns to the question of “when the injured party did discover or

should have discovered the injury . . . so that the time for the statute of limitations to

                                               5
begin running can be set.” Id. “[W]hile the Statute of Limitations may not apply when

the acts complained of are fraudulently concealed from the plaintiff, such application is

suspended only until his rights are discovered or could have been discovered by the

exercise of reasonable diligence.” Giordano, 216 A.2d at 876.

       Accepting Smith’s allegations as true, Whelan’s deceptive conduct throughout his

relationship with Smith may have constituted a pattern of fraudulent concealment of his

alleged tortious conduct. Nevertheless, the fact that Whelan may have concealed his

alleged tortious conduct does not itself mean that the running of the statute of limitations

was tolled for the duration of his fraudulent concealment. The District Court correctly

applied Delaware law by also analyzing whether Whelan’s pattern of obfuscation would

have been sufficient to disturb Smith’s inquiry notice of the source of her injury. “[A]

plaintiff bears the burden of showing that the statute was tolled, and relief from the

statute extends only until the plaintiff is put on inquiry notice.” In re Tyson Foods, Inc.,

919 A.2d 563, 585 (Del. Ch. 2007). Because inquiry notice exists as soon as a plaintiff’s

rights “could have been discovered by the exercise of reasonable diligence,” the date at

which a plaintiff in fact becomes subjectively aware of the source of his or her injury is

not determinative. Krahmer v. Christie’s Inc., 911 A.2d 399, 407 (Del. Ch. 2006)

(internal quotation marks omitted).




                                              6
       We agree with the District Court that Smith was on inquiry notice that Whelan

was the likely source of her injury at the time of her diagnosis on October 10, 2008. 1

The sexually-transmitted nature of the injury, taken together with Smith’s testimony that

she had not engaged in sexual contact with anyone besides Whelan in the two years

leading up to her diagnosis, provided Smith with sufficient information to alert her that

Whelan was the most likely source of her injury.

       We recognize that at the time of her diagnosis, it may have been difficult for Smith

to acknowledge that Whelan was the most likely source of her infection, especially in

light of their romantic relationship and Whelan’s deceptive conduct. Smith testified that

she “logically” recognized at the time that Whelan was “obviously [] where this came

from” as he was the “only person I’ve slept with for years.” App. 304. Still, she

professed simultaneously holding the belief that the virus may have been transmitted to

her from a sexual partner years prior, but was just then beginning to manifest symptoms.



1
  As the District Court observed, this case presents a somewhat unusual claim for
fraudulent concealment, as Smith was aware of her injury, but not the source of that
injury, during the period she argues the statute should have been tolled. This represents a
departure from much of the Delaware case law on fraudulent concealment, which
addresses situations where a plaintiff alleges that, during the tolling period, they had not
yet realized they had been injured at all. See, e.g., Krahmer, 911 A.2d at 403 (plaintiffs
had been unaware during proposed tolling period that the painting they had purchased
from defendant auction house was a forgery); Shockley, 456 A.2d 798 (Del. 1983)
(plaintiff had been unaware during proposed tolling period that her ovaries had been
removed in surgery by defendant doctor). Like the District Court, we assume fraudulent
concealment may toll a statute of limitations for a plaintiff who is aware of his or her
injury, so long as that concealment would have prevented the plaintiff from learning the
source of his or her injury, even with the exercise of due diligence.

                                             7
Regardless of Smith’s subjective ambivalence about the source of her injury following

her diagnosis, Delaware law directs us to focus on the objective question of whether the

source of an injury “could have been discovered by the exercise of reasonable diligence.”

Giordano, 216 A.2d at 876. We believe that Smith had all the information necessary to

put her on inquiry notice that Whelan likely had infected her as of October 10, 2008.

       Although Smith’s subjective knowledge is not determinative, our conclusion is

reinforced by evidence in the record that Smith suspected Whelan as the source. Upon

being diagnosed, Smith immediately asked her gynecologist whether he believed that

Whelan was responsible for infecting her. On October 28, 2008, weeks after Whelan had

denied being sick, Smith confided in her psychiatric nurse that she thought Whelan might

be withholding information from her about whether he had infected her. That Smith

subjectively harbored such suspicions, even in the face of Whelan’s deceptive conduct,

only buttresses our conclusion that the facts known to her at the time of her diagnosis put

her on inquiry notice that Whelan was the likely source of her injury.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment on the ground that Smith’s claims are time-barred under Delaware law.




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