                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 5, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-21152
                         Summary Calendar



JOHN P. EBERHARDT,

                                    Plaintiff-Appellant,

versus

MERCK & COMPANY INC.,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-03-CV-1380
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Proceeding pro se and in forma pauperis (IFP), Texas

prisoner (#1083045) John P. Eberhardt filed a products-liability

complaint against Merck & Company, Inc. (Merck), the

manufacturers of the medication Vioxx.   Eberhardt alleged that he

was prescribed Vioxx in October 1999 and that he was continually

treated with the medication until mid August 2000, “when at the

age of 41 years, [he] suffered congestive heart failure.”

The district court denied a motion to dismiss by Merck, but


     *
       Pursuant to 5TH CIR. R. 47.5, the 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this opinion should not be published and is not precedent except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.
                            No. 03-21152
                                 -2-

nevertheless dismissed the complaint based on a sua sponte

determination that the complaint was not filed within the

applicable statute of limitations.   The court determined that

because Eberhardt’s complaint was time-barred, it failed to state

a claim upon which relief could be granted.

     We review the dismissal of a complaint under FED. R. CIV. P.

12(b)(6) de novo, applying the same standard as that used by the

district court.    Piotrowski v. City of Houston, 51 F.3d 512, 514

(5th Cir. 1995).   “In determining whether to grant a motion to

dismiss, the district court must not go outside the pleadings and

must accept all well-pleaded facts as true, viewing those facts

most favorably to the plaintiff.”    Scanlan v. Texas A&M Univ.,

343 F.3d 533, 536 (5th Cir. 2003).   “A dismissal will not be

affirmed if the allegations support relief on any possible

theory.”   Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th

Cir. 1994).

     Although the defense of limitations usually must be raised

by the defendants in the district court, it also may be raised

sua sponte by the district court.    Jackson v. Johnson, 950 F.2d

263, 265 (5th Cir. 1992)(civil rights case).   Because this is a

diversity case arising under state law, the limitations period

for a Texas personal-injury action is applicable.    See Vaught v.

Showa Denko K.K., 107 F.3d 1137, 1139-40 (5th Cir. 1997).    Thus,

Eberhardt’s action must have been filed “not later than two years
                           No. 03-21152
                                -3-

after the day the cause of action accrue[d].”     Id. (internal

quotations and citation omitted).

     “In general, a cause of action accrues and the limitations

period begins when a wrongful act causes a legal injury.”     Texas

Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F.3d 644, 649

(5th Cir. 2001).   The “discovery rule” is an exception under

which “the limitations period is tolled until the plaintiff

discovers, or through the exercise of reasonable diligence should

have discovered, the nature of [his] injury.”     Vaught, 107 F.3d

at 1140.   Discovery “occurs when a plaintiff ha[s] knowledge of

such facts as would cause a reasonably prudent person to make an

inquiry that would lead to discovery of the cause of action.”

Id. (internal quotations omitted).

     Eberhardt argues that the limitations period should have

been tolled until the Spring of 2001, when he discovered that his

heart failure was connected to Vioxx.     He contends that he acted

diligently in trying to discover what had caused his heart

failure, and he makes a myriad of factual assertions in support

of this contention.   Eberhardt also argues, for the first time on

appeal, that his claim should have been tolled under Texas’s

“Fraudulent Concealment Law.”

     “Arguments not raised in the district court cannot be

asserted for the first time on appeal.”     Greenberg v. Crossroads

Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004).    This “is

especially true where the assertion first raised on appeal is
                           No. 03-21152
                                -4-

factual.”   Greenberg, 364 F.3d at 669.   Accordingly, we do not

consider Eberhardt’s fraudulent-concealment claim or the factual

allegations he makes in support of his argument that he

diligently investigated the source of his heart failure.

     Nevertheless, the record does not support the conclusion

that Eberhardt’s duty to investigate necessarily was triggered

when the doctor discontinued his treatment with Vioxx.    Although

the district court determined that Eberhardt’s physician stopped

giving Eberhardt Vioxx because he developed heart problems, the

record does not, however, support this inference.   In his

complaint, Eberhardt alleged only that he was treated with Vioxx

“until mid August 2000, “when at the age of 41 years, [he]

suffered congestive heart failure.”   This allegation must be

construed in the light most favorable to Eberhardt.    See Scanlan,

343 F.3d at 536.   Thus, it cannot be said that discontinuation of

Vioxx, without more, would have caused a reasonably prudent

person to make an inquiry that would have led to the discovery of

the cause of action.   See Vaught, 107 F.3d at 1140.

     Merck argues “that it is beyond dispute that the information

that Appellant contends revealed a possible association between

the use of VIOXX and his injury was publicly known long before

the critical April 25, 2001 date.”    It argues that “articles that

Appellant produced and cited himself [in response to Merck’s

motion to dismiss] confirm that, prior to April 25, 2001,

Appellant either did discover or, if not, should have discovered,
                            No. 03-21152
                                 -5-

the information that he contends shows an association between

VIOXX and his alleged injury.”

     We have held that extensive media coverage may trigger the

running of the statute of limitations.     Winters v. Diamond

Shamrock Chem. Co., 149 F.3d 387, 403-04 (5th Cir. 1998).

However, Eberhardt’s citations do not reflect the sort of media

coverage that triggered the running of the statute of limitations

in Winters, particularly given that the articles were not

included in the record.

     Merck also cites its own newspaper articles in support of

its media-coverage argument, and asks this court to take judicial

notice of those articles.    “A judicially noticed fact must be one

not subject to reasonable dispute.”    FED. R. EVID. 201(b); see

also Taylor v. Charter Medical Corp., 162 F.3d 827, 831 (5th Cir.

1998)(judicial-notice rule does not authorize a court to make

legal determinations).    We therefore decline to consider the

articles cited by Merck.

     The present record is devoid of facts establishing when

Eberhardt had the knowledge requisite to trigger the running of

the statute of limitations.    Accordingly, we VACATE the judgment

and REMAND the case for further development of the factual record

in light of the applicable tolling provision.
