                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 11-2048


WARNE FERGUSON,

                  Plaintiff – Appellant,

          and

MAYA NYE; LISA BRAGG; SUE DAVIS; REGINA HENDRIX; MILDRED
HOLT; JIM LEWIS; BEVERLY STEENSTRA; ROBIN BLAKEMAN; PAULA
CLENDENIN;   SARAH  ELLIOTT;   JAMES  R.   MITCHELL; DENISE
GIARDINA; MIKE HARMAN; DONNA WILLIS; KATHERINE SUE DAVIS;
BARBARA FRIERSON, current and former citizens of, and
workers in, Kanawha County, West Virginia,

                  Plaintiffs,

          v.

BAYER CROPSCIENCE      LP,      a   for-profit,     Delaware   limited
partnership,

                  Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:11-cv-00087)


Submitted:   February 24, 2012                    Decided:   March 12, 2012


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.
William V. DePaulo, Charleston, West Virginia, for Appellant.
Alvin L. Emch, Thomas J. Hurney, Jr., Michael M. Fisher, Ryan E.
Voelker, JACKSON KELLY, PLLC, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Warne Ferguson appeals a district court order granting

summary      judgment     to   Bayer    Cropscience        L.P.    (“Bayer”),      and

dismissing     his     complaint.       Ferguson     claimed      that   his    wife’s

death   was    caused     by   an    explosion      that    occurred     at    Bayer’s

facility in Institute, West Virginia.                  We affirm the district

court’s      finding    that   the     complaint     was    filed    outside      West

Virginia’s two year statute of limitations.

              We review a district court’s order granting summary

judgment de novo.         The prevailing party must show that there is

no genuine issue of material fact and that it is entitled to

judgment as a matter of law.                    All reasonable inferences are

drawn in favor of the non-moving party.                    Castillo v. Emergency

Med. Assoc., P.A., 372 F.3d 643, 646 (4th Cir. 2004).                          Federal

courts sitting in diversity as in this case apply the state’s

laws regarding the limitations period.                     Rowland v. Patterson,

852 F.2d 108, 110 (4th Cir. 1988).                In West Virginia, there is a

two year statute of limitations for wrongful death actions.                        See

W. Va. Code § 55-7-6(d) (2008).

              Under West Virginia law there is a five-step analysis

used    to    determine    whether      a   cause    of    action    has      accrued:

(1) the court identifies the applicable statute of limitations;

(2) the court should identify when the requisite elements of the

cause of action occurred; (3) the discovery rule should be used

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to    determine         when    the     limitations       period     began       to    run    by

determining when the plaintiff knew or should have known of the

elements of the possible cause of action; (4) if the plaintiff

is    not    entitled          to    the     discovery       rule,   the    court          should

determine          if     the       defendant        fraudulently     concealed            facts

preventing the plaintiff from discovering the cause of action

and   if     so,    the    limitations        period     is     tolled;    (5)       the   court

should determine whether the limitations period has been tolled

by    some     other       tolling         doctrine.          Mack-Evans         v.    Hilltop

Healthcare Ctr., Inc., 700 S.E.2d 317, 322 (W. Va. 2010).

              West       Virginia’s        discovery     rule     applies       to    wrongful

death actions.            See Bradshaw v. Soulsby, 558 S.E.2d 681, 688 (W.

Va. 2001).         Under the discovery rule, the statute of limitations

begins to run when the plaintiff knows, or by the exercise of

reasonable         diligence        should    know:       (1)    there     is    an    injury;

(2) the identity of the party who owed the injured party a duty

to act with due care; and (3) the entity’s conduct has a causal

relation to the injury.                Mack-Evans, 700 S.E.2d at 322.                  Whether

a plaintiff “knows of” or has “discovered” a cause of action is

an    objective         test.        The   plaintiff      is     charged     with      factual

knowledge rather than the legal basis for the cause of action.

“This objective test focuses upon whether a reasonable prudent

person      would       have    known,      or   by    the    exercise     of     reasonable

diligence should have known, of the elements of a possible cause

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of action.”           Dunn v. Rockwell, 689 S.E.2d 255, 265 (W. Va.

2009).     Knowledge requires something more than mere apprehension

that something might be wrong.                    Gaither v. City Hosp., Inc., 487

S.E.2d 901, 909 (W. Va. 1997).                       In order to toll the statute of

limitations,      it       must    be    reasonable         for    the   plaintiff        not    to

recognize that the injury or condition might be related to the

defendant’s conduct.              Id.

            We      have       reviewed         the      record      and      conclude       that

Ferguson’s cause of action accrued when his wife died.                                          His

complaint,       thus,      was    filed       outside      the    two     year    statute       of

limitations.          While it is true that whether Ferguson had the

requisite knowledge to trigger the running of the statute of

limitations is a question of fact, it is not necessary to submit

the issue to a jury if there are undisputed facts from which

only one conclusion could be drawn.                         See Perrine v. E.I. Dupont

de     Nemours    &      Co.,      694        S.E.2d     815,      852     (W.    Va.     2010).

Furthermore, it was not necessary for Ferguson to discover facts

supporting the finding that Bayer was negligent prior to the

running of the statute of limitations.                          All that is required is

that    Ferguson      was    aware       or     should      have   been       aware   that      the

explosion     had      a    causal       effect        on   his     wife’s       death.         See

Gaither,    487       S.E.2d      at     909.        With    regard      to    the    issue     of

intentional       concealment            on     Bayer’s      part,       we    conclude      that



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Ferguson    was   not    prevented     from    discovering    or     pursuing    the

cause of action.        See Dunn, 689 S.E.2d at 265.

              Accordingly, we affirm for the reasons cited by the

district    court.       We   dispense    with   oral     argument    because    the

facts   and    legal    contentions      are   adequately    presented      in   the

materials     before    the    court   and     argument    would     not   aid   the

decisional process.

                                                                           AFFIRMED




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