Prod.liab.rep.(cch)p 11,879alfred Moreno and Emma Moreno, Plaintiffs-appellants, v. Sterling Drug, Inc., Defendant-appellee.camilla Sloan and James Sloan, Plaintiffs-appellants, v. Sterling Drug, Inc., Defendant-appellee, 850 F.2d 1047 (5th Cir. 1985)

It appears to the United States Court of Appeals for the Fifth Circuit that this case involves questions of Texas law for which we find neither a dispositive statutory provision nor controlling precedent in the decisions of the Supreme Court of Texas. The answers to the questions posed will be determinative of the pending appeals and are essential to the appropriate resolution of this litigation.

The styles of the consolidated cases are "Alfred Moreno and Emma Moreno vs. Sterling Drug, Inc." and "Camilla Sloan and James Sloan vs. Sterling Drug, Inc.", bearing number 87-5583 on the docket of this court and numbers SA-85-CA-3242 and SA-85-CA-3243 on the docket of the United States District Court for the Western District of Texas, where the appeals originated.2. Statement of Facts

On January 21, 1981 Alfred Moreno, Jr., the infant son of Alfred and Emma Moreno, died of Reye's Syndrome. On September 19, 1981 Shawna Rae Sloan, the infant daughter of James and Camilla Sloan, died of Reye's Syndrome. In the days preceding their deaths, the infants had been administered doses of Bayer Childrens Chewable Aspirin, manufactured by Sterling Drug, Inc. Some time after the death of the infants the parents were informed that in some instances the use of aspirin factored into Reye's Syndrome deaths. On October 22, 1985 the instant wrongful death suits were filed in state district court in Bexar County, Texas. Sterling Drug removed the actions to the United States District Court for the Western District of Texas, San Antonio Division.

Following removal, Sterling Drug moved for summary judgment dismissal of the suits, claiming that the actions were barred by the Texas Statute of Limitations, Tex.Civ.Proc. & Rem.Code Sec. 16.003(b) (Vernon 1986). The federal district court dismissed the suits, citing a recent decision by a panel of this court, Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68 (5th Cir. 1987). The parents appealed; their appeals pend.

A. Does the "discovery rule" apply to the Texas Statute of Limitations, Tex.Civ.Prac. & Rem.Code Sec. 16.003(b), in an action brought pursuant to the Texas Wrongful Death and Survival Statutes, Tex.Civ.Prac. & Rem.Code Sec. 71.001 et seq., Sec. 71.021, respectively?

B. If the discovery rule does not apply to the Texas Statute of Limitations in wrongful death and survival actions, does that statute of limitations, as applied to the plaintiffs herein, violate the open-courts provision of the Constitution of the State of Texas, Tex. Const. art. I Sec. 13?

The names, addresses, and telephone numbers of the attorneys for the parties are:

Mendelsohn, Heidelberg, Longoria & Beer, Inc.

1010 InterFirst Plaza

300 Convent Street

San Antonio, Texas 78205

(512) 222-2271

Attorneys for Alfred and Emma Moreno and James and Camilla Sloan, plaintiffs-appellants

Mark M. Donheiser

Strasburger & Price

4300 First RepublicBank Plaza

901 Main Street, L.B. 175

Dallas, Texas 75202

(214) 651-4300

Attorneys for Sterling Drug, Inc., defendant-appellee

In framing the questions, we intend no limitation or restriction on the Texas Supreme Court's consideration of the legal issues presented.

The entire record in this case, including copies of the briefs of the parties are transmitted herewith.

QUESTIONS CERTIFIED.