                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 09-3460


                         D.D., on behalf of herself and as p/n/g
                              of her minor daughter B.D.,
                                                    Appellant

                                            v.

                               IDANT LABORATORIES,
                        as a Division of DAXOR CORPORATION


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. Civil No. 08-cv-04075)
                 District Judge: Honorable Thomas N. O’Neill, Jr.


                                   Argued: March 9, 2010


              Before: McKEE, BARRY and GREENBERG, Circuit Judges

                             (Opinion Filed: April 1, 2010)




Daniel L. Thistle, Esq. (Argued)
Suite 2350
1845 Walnut Street
Philadelphia, PA 19103-0000

Counsel for Appellant
Rory L. Lubin, Esq. (Argued)
Wilson, Elser, Moskowitz, Edelman & Dicker
3 Gannett Drive
White Plains, NY 10604

Counsel for Appellee




                                         OPINION




BARRY, Circuit Judge

       D.D., on behalf of herself and as p/n/g of her minor daughter, B.D., appeals from

orders of the U.S. District Court for the Eastern District of Pennsylvania dismissing her

claims against Idant Laboratories (“Idant”). The District Court concluded that D.D.’s

claims were barred by the applicable statute of limitations, and that her claims on behalf

of B.D. failed to state an actionable theory of harm or damages. We will affirm.

                                    BACKGROUND

       Because the parties are familiar with the facts, we include only those that are

material to our discussion. D.D. sought to be artificially inseminated with semen

provided by Idant. She selected the semen of Donor G738, was instructed that Donor

G738’s specimen had been tested in conformity with New York Health Regulations, and

arranged to have the semen shipped to her physician. Following successful insemination

in April 1995, B.D. was born on January 4, 1996. Shortly after B.D.’s birth, D.D. began

to notice that B.D. was displaying abnormalities such as “trouble sleeping, tantrums, and

anxiety as well as developmental delays.” (App. at 78.) In December 1997, the

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Children’s Hospital of Philadelphia diagnosed B.D. as a “Fragile X” carrier.1 In February

1998, SmithKline Beecham Clinical Laboratories (“SmithKline”) reported genetic test

results showing that D.D. was not a “Fragile X” carrier, and in May 1998, reported that

Donor G738 was a carrier of the “Fragile X permutation.” (Id. at 177.) SmithKline also

confirmed B.D.’s status as a “Fragile X” carrier, and indicated that “this finding is not

associated with any clinical manifestations, but may have reproductive ramifications.”

(Id. at 181.)

       D.D. alleges that Idant attempted to conceal the connection between “Fragile X”

and B.D.’s disabilities. In 1998, Idant forwarded to D.D.’s counsel a letter from Fred

Gilbert, M.D., of Cornell University Medical College, which stated that the “fact that

B.D. [ ] is retarded must be attributed to something other than her Fragile X carrier

state.” (Id. at 112.) The letter explained that B.D.’s status as a “Fragile X” carrier “is

associated with normal appearance and development, and a risk of retardation in her

offspring.” (Id.) Idant forwarded a second letter, authored by Professor Paul G.

McDonough, M.D. of the Medical College of Georgia, which also maintained that the

“retardation exhibited by B.D. must be due to a cause other than a mutation . . . .” (Id. at

113.) That letter added that it “is important to perform cytogenetic studies, and other

evaluations on B.D. based upon her specific clinical findings.” (Id.) It appears that those

letters were sent in response to a draft complaint submitted to Idant alleging that “the



   1
     As the District Court has explained, “Fragile X” is “a genetic syndrome which
results in a spectrum of physical, intellectual, emotional and behavioral characteristics
which range from severe to mild in manifestation.” (App. at 5.) The gene responsible for
“Fragile X” was first discovered in 1991; there is no known cure.

                                            -3-
‘Fragile X Syndrome’ was caused by Donor G738 and passed on to B.[D]. . . . [and as] a

direct result of being born with the ‘Fragile X Syndrome,’ [B.D.] has permanently

impaired developmental communication, play, motor planning, sensory and cognitive

skills . . . [and] a fifty-percent chance of passing” Fragile X to her issue. (App. at 167-

68.) D.D. argues that she relied on these letters “telling her that her daughter’s problems

were not caused by the sperm sold by [Idant].” (Appellant’s Br. at 8.)

       D.D. claims that in August 2006, Dr. Randi Hagerman, a professor at the

University of California at Davis, “indicated to [D.D.] that there was a connection

between the purchase from defendant and [B.D.’s] developmental problems.” (App. at

79.) She further claims that it was “not until 2008 when a report was published in The

American Journal of Medical Genetics Part A titled ‘A Girl With Fragile X Permutation

From Sperm Donation’ that [she] could know definitely that [B.D.’s] Fragile X

developmental and other problems were caused by the sperm sold by Idant.” (Id. at 80.)

That report recommended “fragile X DNA screening of male and female candidates for

gamete donation since this mutation is common in the general population and can cause

clinical involvement in carriers.” (Id. at 73.)

                               PROCEDURAL HISTORY

       On July 16, 2008, D.D. filed a complaint against Idant in the Philadelphia County

Court of Common Pleas alleging negligence, breach of contract, third-party beneficiary

breach of contract, breach of express and implied warranties of merchantability, third-

party beneficiary breach of express and implied warranties of merchantability, negligent

misrepresentation, strict products liability, and negligent infliction of emotional distress,



                                             -4-
all because of Idant’s failure to identify Donor G738 as a “Fragile X” carrier. D.D. cites

as her damages the costs and services needed by B.D. for the “treatment of the

characteristics of Fragile X Syndrome.” (Id. at 50.) She cites as well the medical

problems B.D. faces in the future and the costs associated with them, and B.D.’s

“permanent loss of the joys and comforts of everyday life.” (Id. at 52.) Idant removed

the action to the U.S. District Court. On March 31, 2009, the Court dismissed D.D.’s

individual claims, finding that they were time-barred under Pennsylvania’s applicable

statute of limitations. An amended complaint was filed on B.D.’s behalf, but the

complaint was dismissed on the ground that New York law does not permit an action for

“wrongful life.”

                                        DISCUSSION

         Our review of the District Court’s orders is plenary. See Phillips v. County of

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). A court should only grant a Rule 12(b)(6)

motion to dismiss where the plaintiff fails to plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

Fawler v. UPMC Shadyside, 578 F.3d 203, 211-12 (3d Cir. 2009). We have jurisdiction

pursuant to 28 U.S.C. § 1291.2

A.       Statute of Limitations

         The District Court dismissed D.D.’s claims on the ground that they were barred by




     2
     We reject, without further discussion, Idant’s arguments that we lack jurisdiction
over D.D.’s claims.

                                             -5-
the applicable statute of limitations.3 D.D. was inseminated with Donor G738’s semen in

1995, B.D. was born in 1996, and it was shortly after her birth that D.D. began to see

problems with B.D.’s development. Whatever specific date is used for the date of injury,

the date on which this action was filed – July 16, 2008 – is well outside of Pennsylvania’s

prescribed statute of limitations periods for both tort and contract claims. See 42 Pa.

Cons. Stat. Ann. § 5524(7) (two year statute of limitations for tort claims); 42 Pa. Cons.

Stat. Ann. § 5525 (four year statute of limitations for contract claims). “Once the

prescribed statutory period has expired, the individual is barred from bringing suit, unless

some exception which tolls the statute of limitations can be proven.” Ward v. Rice, 828

A.2d 1118, 1121 (Pa. Super. Ct. 2003).4

       D.D. argues that the statute of limitations was tolled because she relied on the

letters of Drs. Gilbert and McDonough and because she was unable to know that B.D.’s

“Fragile X, developmental, and other problems were caused by the sperm sold by Idant”

until the 2008 publication of “A Girl With Fragile X . . . .” (Appellant’s Br. at 23.)

Stated generally, she bases her argument for tolling on Pennsylvania’s discovery rule and

fraudulent concealment doctrine.5



   3
      D.D. does not dispute the District Court’s ruling in this diversity action that
Pennsylvania law dictates the applicable statute of limitations and New York law governs
all substantive claims.
   4
     B.D. is not yet eighteen years old, and the District Court correctly found that her
claims were not time-barred. See 42 Pa. Cons. Stat. Ann. § 5533(b).
   5
      “Whether a complaint is timely filed within the limitations period is a matter of law
for the court to determine.” Lazarski v. Archdiocese of Phila., 926 A.2d 459, 461 (Pa.
Super. Ct. 2007) (quoting Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)).

                                            -6-
1.     Tolling Pursuant to the Discovery Rule

       “The discovery rule . . . tolls the running of the applicable statute of limitations

when an injury or its cause was not known or reasonably knowable.” Simon v. Wyeth

Pharms., Inc., __ A.2d __, 2009 WL 5154031, at *5 (Pa. Super. Ct. Dec. 31, 2009); see

Wilson v. El-Daief, 964 A.2d 354, 359 (Pa. 2009). Tolling is applied where “despite the

exercise of reasonable diligence,” the plaintiff could identify neither her injury nor its

source within the limitations period. Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc.,

468 A.2d 468, 471 (Pa. 1983). Reasonable diligence is an objective test, but it is also

“sufficiently flexible . . . to take into account the difference[s] between persons and their

capacity to meet certain situations and the circumstances confronting them at the time in

question.” Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005) (citations omitted).

Demonstrating reasonable diligence requires a plaintiff to establish that she displayed

“those qualities of attention, knowledge, intelligence, and judgment which society

requires of its members for the protection of their own interests and the interests of

others.” Wilson, 964 A.2d at 363 n.6 (citation omitted). With regard to identifying the

injury or its cause, “plaintiffs need not know that they have a cause of action, or that the

injury was caused by another party[] . . . , for once a plaintiff possesses the salient facts

concerning the occurrence of his injury and who or what caused it, he has the ability to

investigate and pursue his claim.” Romah v. Hygienic Sanitation Co., 705 A.2d 841, 857

(Pa. Super. Ct. 1997) (quoting Vernau v. Vic’s Mkt., Inc., 896 F.2d 43, 46 (3d Cir. 1990)).

       As far back as 1997, D.D. knew that B.D. was a “Fragile X” carrier. By early

1998, she knew that she was not a carrier, and in May of that year, she knew that Donor



                                             -7-
G738 was and that males who possess the Fragile X syndrome pass it to all of their

daughters. It was based on this knowledge that her counsel was able to send Idant a draft

complaint alleging that B.D.’s numerous deficiencies were the result of her “‘Fragile X

syndrome’ . . . caused by Donor G738.” (App. at 167.) D.D. alleges that the letters of

Drs. Gilbert and McDonough undermined any suspicion she might have had that B.D.’s

disabilities were related to Donor G738 and Fragile X. If that is so, she clearly failed to

demonstrate “those qualities of attention, knowledge, intelligence and judgment which

society requires of its members . . . .” See Wilson, 964 A.2d at 363 n.6. A reasonable

person would have questioned some of what was in those letters coming, as they did,

from the defendant’s doctors, or at least have done what Dr. McDonough said it was

important to do: “perform cytogenetic studies, and other evaluations.” (App. at 113.) In

any event, we note that although the letters say that B.D.’s mental retardation was not

caused by her Fragile X carrier state, they are consistent in important respects with the

SmithKline reports on Donor G738 and B.D. – they agree, for example, that she is a

Fragile X carrier whose children will be at increased risk of developing the full Fragile X

syndrome including retardation. Having “possess[ed] the salient facts concerning the

occurrence of” the injury alleged here and what caused it at the time the draft complaint

was prepared, the discovery rule did not toll D.D.’s cause of action beyond 1998. See

Romah, 705 A.2d at 857 (citation omitted).

2.     Tolling Pursuant to Fraudulent Concealment Doctrine

       “[I]n order for fraudulent concealment to toll the statute of limitations, the

defendant must have committed some affirmative independent act of concealment upon



                                            -8-
which the plaintiff[] justifiably relied.” Lazarski v. Archdiocese of Phila., 926 A.2d 459,

465 (Pa. Super. Ct. 2007) (citations omitted); see Mest v. Cabot Corp., 449 F.3d 502, 516

(3d Cir. 2006) (“Pennsylvania's fraudulent concealment doctrine tolls the statute of

limitations where through fraud or concealment the defendant causes the plaintiff to relax

vigilance or deviate from the right of inquiry” (internal quotations omitted).). The

plaintiff bears the burden of proving fraudulent concealment, and must “show that he

exercised reasonable diligence in attempting to uncover the relevant facts.” Forbes v.

Eagleson, 228 F.3d 471, 487 (3d Cir. 2000). As is the case with the discovery rule, “the

fraudulent concealment doctrine does not toll the statute of limitations where the plaintiff

knew or should have known of his claim despite the defendant’s misrepresentation or

omission.” Mest, 449 F.3d at 516.

       Again, reasonable minds cannot disagree. D.D. does not identify the “affirmative

independent act of concealment” on which she relied, or what it was in those letters that

was fraudulent. Moreover, the medical malpractice cases that D.D. cites are easily

distinguishable involving, as they do, plaintiffs who relied on the assurances of their own

physicians, and who therefore were justified in relaxing their vigilance. See Ayers v.

Morgan, 154 A.2d 788, 793 (Pa. 1959); Ward, 828 A.2d at 1125; Barshady v. Schlosser,

313 A.2d 296, 299 (Pa. Super. Ct. 1973). And, as noted above, the substance of the Idant

letters is consistent in important respects with the SmithKline reports.

       Because D.D. was aware of both an injury and its source in 1998, her claims were

untimely and were properly dismissed.

C.     The Merits of the Claims on Behalf of B.D.



                                            -9-
          D.D. argues on behalf of B.D. that the claims for strict products liability, third

party beneficiary breach of express warranty, third party beneficiary breach of implied

warranty of merchantability, and third party beneficiary breach of contract were

wrongfully dismissed as claims based on an impermissible wrongful life theory.

          Guided by the principle that “[w]hether it is better never to have been born at all

than to have been born with even gross deficiencies is a mystery more properly to be left

to the philosophers and the theologians,” Becker v. Schwartz, 46 N.Y.2d 401, 411 (1978),

New York courts have held that “a cause of action may not be maintained on behalf of an

infant plaintiff based on a claim of wrongful life . . . ,” Sheppard-Mobley v. King, 830

N.E.2d 301, 305 (N.Y. 2005) (quotations omitted). Wrongful life cases pose particularly

thorny problems in the damages context: “Simply put, a cause of action brought on

behalf of an infant seeking recovery for wrongful life demands a calculation of damages

dependant upon a comparison between the Hobson’s choice of life in an impaired state

and nonexistence. This comparison the law is not equipped to make.” Becker, 46 N.Y.2d

at 412.

          Regardless of whether a particular cause of action is denominated as one of

contract, products liability, or something else, all of the claims on behalf of B.D. suffer

from the same defect: the lack of a cognizable injury. See Paretta v. Med. Offices for

Human Reprod., 760 N.Y.S.2d 639, 644 (N.Y. Sup. Ct. 2003) (“[R]egardless of the

denomination of the nature of their claims, the infants could not recover because ‘it does

not appear that [they] suffered any legally cognizable injury’” by being born with illness

(quoting Becker, 46 N.Y.2d at 411).). In arguing that the defective semen left B.D.



                                               -10-
impaired and in need of costly treatment, D.D. is essentially saying that B.D.’s genetic

makeup is her injury. The difficulties that B.D. now faces and will face are surely tragic,

but New York law, which controls here, states that she “like any other [child], does not

have a protected right to be born free of genetic defects.” See id. at 646. To find the

contrary would invite litigation for any number of claimed injuries and, even more

problematic, require courts to identify certain traits below some arbitrarily established

marker of perfection as “injuries.” Accordingly, we conclude that, applying New York

law, the causes of action asserted on B.D.’s behalf fail to identify damages different from

those for wrongful life.

                                      CONCLUSION

       The orders of the District Court will be affirmed.




                                           -11-
