                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                          January 11, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk

                                            No. 04-20110




JEFFREY W. BRIDGES,
                                                                                  Plaintiff - Appellant,

                                                versus

METABOLIFE INTERNATIONAL, INC; ET AL,
                                                                                           Defendants,
METABOLIFE INTERNATIONAL, INC.,
                                                                                Defendant - Appellee.



                            Appeal from the United States District Court
                                for the Southern District of Texas
                                          (03-CV-3847)



Before JONES, SMITH, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

        This is an appeal from the district court's dismissal of Jeffrey Bridges’s (Bridges) personal

injury claim against Metabolife International, Inc (Metabolife). Bridges maintains that he was injured

as a result of ingesting Metabolife’s dietary supplement and that Metabolife fraudulently concealed

its knowledge of the potential harm caused by its product. Bridges challenges the district court

dismissal of his claim, with prejudice, as untimely. Finding no error on the part of the district court,


        *
          Pursuant to 5TH CIR. R. 47.5, t he court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
we AFFIRM.



                       FACTUAL AND PROCEDURAL BACKGROUND

        Jeffrey Bridges ingested Metabolife 356 for several months prior to September 14, 1999.

Metabolife 356 is a dietary supplement containing ephedra and caffeine marketed by Metabolife

International, Inc. On September 14, 1999, Bridges was transported to the emergency room of

Conroe Regional Medical Center, and later transferred to Memorial Hermann Hospital. In response

to general intake questions, Bridges advised medical personnel at both hospitals that he was taking

Metabolife 356 in addition to his other medications. Doctors eventually diagnosed Bridges as having

suffered a posterior hemispheric int racerebral hemorrhage of the lobar variety, i.e. a stroke. The

doctors attributed Bridges’ st roke to hypertension and he was discharged. Bridges conducted no

further investigation into the cause of his stroke.

        Bridges argues he did not become aware of a possible connection between his stroke and

Metabolife 356 until 2002, when he learned via media reports that dietary supplements containing

ephedra and caffeine were linked to strokes. Upon learning that Metabolife 356 might have

contributed to his stroke, Bridges contacted counsel and after an investigation, filed this personal

injury suit on May 28, 2003. Metabolife responded with a general denial and a motion for summary

judgment based on the two year limitations period for filing personal injury actions. The district court

dismissed Bridges’s suit as time barred. Bridges timely appealed.

                                     STANDARD OF REVIEW

        We review a district court's grant of summary judgment de novo, applying the same standards

as the district court. Evans v. City of Houston, 246 F.3d 344, 347 (5th Cir. 2001). Summary


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judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986). If the

moving party meets the initial burden of showing there is no genuine issue of material fact, the burden

shifts to the nonmoving party to produce evidence or designate specific facts showing the existence

of a genuine issue for trial. Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)

(internal quotation marks and citations omitted). Doubts are to be resolved in favor of the

nonmoving party, and any reasonable inferences are to be drawn in favor of that party. See Burch v.

City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).

                                             DISCUSSION

        The parties do not dispute that this case arises under Texas law and is therefore subject to the

Texas statute of limitations for personal injury actions. Under Texas law, a personal injury action

must be filed within two years after the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.003(a). Bridges filed suit almost four years after the occurrence of the physical injury that is the

impetus to this claim. In Texas, generally “a cause of action accrues and the two-year limitations

period begins to run as soon as the owner suffers some injury, regardless of when the injury becomes

discoverable.” Computer Assoc. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 458 (Tex. 1996). Statute

of limitations can be tolled in certain circumstances. Bridges argues that summary judgment based

on untimeliness is inappropriate in this case because (1) t he defendant fraudulently concealed the

cause of action, and (2) he was unable to discover his cause of action until a possible link between

his stroke and Metabolife 356 become public in 2002.


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       Metabolife counters that Bridges is precluded from asserting the fraudulent concealment

defense because Metabolife did not have actual knowledge of Bridges’s injury, and Metabolife did

not have a duty to disclose a possible wrong because there was no fiduciary relationship. Metabolife

also argues that Bridges cannot claim that his injury was inherently undiscoverable because Bridges

knew of the cause of action, i.e., his stroke, and a reasonable person would have made an inquiry into

the cause of their stroke.

A.     Fraudulent Concealment

       Under Texas law, fraudulent concealment is an equitable doctrine that tolls the statute of

limitations. A defendant who has a duty to make a disclosure cannot avoid liability by concealing

wrongdoing until the statute of limitations has run. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.

1983). Fraudulent concealment’s estoppel effect "ends when a party learns of facts, conditions, or

circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued,

would lead to discovery of the concealed cause of action. Knowledge of such facts is in law

equivalent to knowledge of the cause of action." Casey v. Methodist Hosp., 907 S.W.2d 898, 904

(Tex. App. 1995). To show entitlement to the estoppel effect, the plaintiff must show: (1) the

defendant had actual knowledge of the wrong, (2) a duty to disclose the wrong, and (3) a fixed

purpose to conceal the wrong. Id. at 903 (quot ation marks omitted). Mere concealment is

insufficient to establish fraudulent concealment, the defendant must have had a duty to disclose.

Seibert v. Gen. Motors Corp., 853 S.W.2d 773, 778 (Tex. App. 1993). In the absence of an

agreement, a duty to disclose arises when there is a confidential or fiduciary relationship. Trs. of

Northwest Laundry and Dry Cleaners Health & Welfare Trust Fund v. Burzynski, 27 F.3d 153, 157

(5th Cir. 1994). The party asserting the fraudulent concealment defense bears the burden of showing


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that the defendant was under a duty to make a disclosure. Nichols v. Smith, 507 S.W.2d 518, 521

(Tex. 1974).

       Here, the parties do not assert that a formal fiduciary relationship arose through contractual,

or other means - i.e. as a matter of law (e.g. attorney-client). However, an informal fiduciary duty

may arise from a moral, social, domestic or purely personal relationship of trust and confidence.

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997). Subjective trust alone

is not sufficient, as a matter of law, to transform arm's-length dealing into a fiduciary relationship.

Id. (quotation marks and citation omitted). There must have been a fiduciary relationship “prior to,

and apart from, the agreement made the basis of the suit,” in order for the courts to i mpose an

informal fiduciary relationship in a business transaction. Id.

       Bridges presented evidence that Metabolife represented to the Food and Drug Administration

in 1997 that the product was safe and the company was unaware of any adverse health events suffered

by consumers who ingested their product. Metabolife also represented the same to the state of Texas

in 1998. However, in 2002, pursuant to a United States Justice Department inquiry, Metabolife

admitted that its previous statements were false, and it had actually received a plethora of complaints

about consumers who suffered severe health effects or even death. Bridges asserts that because

Metabolife voluntarily disclosed certain information to government agencies, and made

representations to the public, it was under a duty to make full and accurate disclosures to the public

as any information become available, citing Citizens Nat’l Bank and Lender Asset Recovery, Inc. v.

Allen Rae Inv., Inc.1 Bridges contends that Metabolife’s failure to make full and accurate disclosures

prevented him from discovering his cause of action within the limitations period.


       1
           2004 WL 454083, at *10 (Tex. App. March 11, 2004).

                                                  5
        Bridges does not meet the first prong of fraudulent concealment in that he does not

demonstrate that Metabolife had actual knowledge of his injury. Secondly, Bridges has failed to meet

his burden of showing that Metabolife owed a fiduciary duty to him, which would have imposed on

it a duty to fully and honestly disclose. Citizens Nat’l Bank is distinguishable because it dealt with

the duty to disclose in relation to a fraud cause of action, whereas the duty to disclose comes up in

the present case in the context of fraudulent concealment asserted as a defense in order to toll the

applicable statute of limitations. Bridges also has not demonstrated that a fiduciary relationship

existed prior to and apart from the transaction underlying this suit. See Schlumberger, 959 S.W.2d

at 177. “Although a manufacturer is under a duty to adequately warn of the foreseeable inherent

dangers attendant upon the proper and intended use of its products, the duty to warn is unrelated to

the duty to disclose a cause of action.” Seibert, 853 S.W.2d at 778. Without a duty to disclose, mere

concealment is not fraudulent concealment for purposes of tolling the statute of limitations. Id.

B.      Discovery rule

        Accrual occurs on the date the plaintiff first becomes entitled to sue the defendant based upon

a legal wrong attributed to the latter, even if the plaintiff is unaware of the injury. Vaught v. Showa

Denko K.K., 107 F.3d 1137, 1140 (5th Cir. 1997) (quotation marks and citation omitted). However,

“the discovery rule exception defers accrual of a cause of action until the plaintiff knew or, exercising

reasonable diligence, should have known of the facts giving rise to the cause of action.” In The

Matter of Coastal Plains, Inc., 179 F.3d 197, 214 (5th Cir. 1999) (citation omitted). The discovery

rule exception is applied in those limited circumstances where the nature of the injury is inherently

undiscoverable and the evidence of injury is objectively verifiable. Id. An injury is not inherently

undiscoverably merely because a plaintiff did not discover his injury, but instead, because “it is by


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nature unlikely to be discovered within the prescribed limitations period despite due diligence.” Id.

at 215. The primary factor in determining whether the discovery rule is applicable is whether the

injury is objectively verifiable. Id. An injury is objectively verifiable where direct, physical evidence,

which in and of itself establishes negligence, is sufficient to prove an indisputable nexus between the

injury and the wrong. See S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996).

        Because Bridges alleged t he discovery rule in his complaint, Metabolife, in its summary

judgment motion, had t he burden to negate the application of the discovery rule. See Wheeler v.

Methodist Hosp., 95 S.W.3d 628, 637 (Tex. App. 2002). Metabolife argues that because Bridges

knew of his stroke in September 1999 and undertook no due diligence to determine its cause, Bridges

should be precluded from successfully using the discovery rule exception. Also because Bridges

knew he had a stroke, his injury was inherently discoverable. Furthermore, Metabolife contends that

Bridges has offered no direct, physical evidence that demonstrates that the cause of his stroke was

the Metabolife 356 supplements he ingested. Hence, Bridges’ action is not objectively verifiable.

        Bridges counters that Metabolife does not carry its burden by simply asserting that his

knowledge of his stroke in 1999, alone, is enough to negate the discovery rule. Bridges maintains

that there was no way for him to know that the injury was linked to an external factor, instead of a

natural illness. Moreover, Bridges argues that his medical records, in that they indicate he suffered

a stroke, are objectively verifiable evidence of the injury.

        Bridges’ attempt to apply the discovery rule here fails because his injury is not objectively

verifiable. Although his medical records demonstrate that Bridges did indeed suffer a stroke, he has

presented no direct, physical evidence which demonstrates an indisputable nexus between the stroke




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and Metabolife 356. Because Bridges’ injury is not objectively verifiable, the discovery rule exception

is not applicable to toll the statute of limitations for Bridges’ personal injury action.

                                           CONCLUSION

        For the foregoing reasons, the district court’s decision to grant summary judgment for

Metabolife is AFFIRMED.

AFFIRMED.




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