The Lawletter Vol 36 No 1, September 9, 2011
The U.S. Court of Appeals for the Second Circuit recently addressed questions regarding the tolling of the statute of limitations in individual products liability actions by the filing of a putative class action in another jurisdiction. See Casey v. Merck & Co., Dkt. Nos. 10-1137-cv(L), 10-1196-cv (Con), 10-1150-cv (Con), 10-1149-cv (Con), 2011 WL 3375104 (2d Cir. Aug. 5, 2011). The plaintiffs in Casey were all residents of Virginia. They filed separate products liability actions asserting numerous theories against the defendant drug manufacturer, based on allegations that the defendant's drug "Fosamax," sold as a treatment for bone conditions, had caused "bone death" in their jaws. The various plaintiffs had been diagnosed with this condition between 2003 and 2005. They commenced their actions against the defendant in 2007 and 2008. The plaintiffs filed their cases in the U.S. District Court for the Southern District of New York, asserting solely Virginia state law claims. Without tolling, their claims would have been barred by Virginia's two-year statute of limitations, which all the plaintiffs agreed was applicable on the basis of New York's borrowing statute. The defendant moved for summary judgment on the ground that the statute of limitations governing the plaintiffs' claims had expired.
In September 2005, before the plaintiffs had filed their actions, a putative class action on behalf of a nationwide class of "Fosamax" users asserting virtually identical claims was filed in the U.S. District Court for the Middle District of Tennessee. Eventually, the U.S. District Court for the Southern District of New York, where the putative class action had been transferred, denied the motion to certify the class. Citing American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Casey plaintiffs opposed the defendant's motion for summary judgment on the basis that the statute of limitations applicable to the plaintiffs' claims was tolled for 28 months during the pendency of the class action. Nevertheless, the district court granted the defendant's motion.
On the plaintiffs' appeal, the Second Circuit observed that a federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether the statute of limitations may be tolled. However, the court of appeals determined that it "lack[ed] sufficient indicia of Virginia law" on the issue, and resolved to ask the Virginia Supreme Court itself whether a 1999 decision by the U.S. Court of Appeals for the Fourth Circuit had accurately predicted that Virginia would not allow equitable tolling on the basis of a federal class action filed outside of Virginia. Accordingly, the court of appeals certified to the Virginia Supreme Court the question of whether Virginia law permits statutory or equitable tolling of a Virginia statute of limitations based on the pendency of a putative class action in another jurisdiction. The Second Circuit noted its confidence that certification would resolve the litigation, given that the certified issues would be determinative of the appeal.