Warne Ferguson v. Bayer Cropscience Lp, a for-profit, Delaware limited partnership

UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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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