Casey v. Merck & Co. Inc.
| Decision Date | 05 August 2011 |
| Docket Number | 10–1196–cv (Con),10–1150–cv (Con),Docket Nos. 10–1137–cv(L),10–1149–cv (Con). |
| Citation | 653 F.3d 95 |
| Parties | John CASEY, Individually as Administrator of the Estate of Ora Casey, Rebecca Quarles, Robert Schnurr, Dorothy C. Deloriea, Roberta Brodin, Thomas Brodin, Plaintiffs–Appellants,v.MERCK & CO., INC., Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Timothy M. O'Brien, Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A., Pensacola, FL, for Plaintiffs–Appellants.Norman C. Kleinberg, Theodore V.H. Mayer, William J. Beausoleil, Hughes Hubbard & Reed LLP, New York, NY; Paul F. Strain, David J. Heubeck, Venable LLP, Baltimore, MD, for Defendant–Appellee.Before: SACK, LIVINGSTON, and LOHIER, Circuit Judges.LOHIER, Circuit Judge:
This consolidated appeal involves questions of Virginia law relating to equitable and statutory cross-jurisdictional tolling, and in particular whether Virginia law recognizes the tolling doctrine established in American Pipe & Construction Company v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).
The plaintiffs in these four cases appeal from a judgment of the United States District Court for the Southern District of New York (Keenan, J.), granting summary judgment in favor of defendant Merck Sharp & Dohme Corporation (“Merck”), formerly known as Merck & Co., Inc., and dismissing their product liability claims for injuries allegedly caused by Merck's prescription drug, Fosamax.1 The plaintiffs filed their separate lawsuits in the Southern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332.
The plaintiffs, all residents of Virginia, raise only state law claims and do not dispute either that Virginia's two-year statute of limitations applies to their claims or that they filed their actions more than two years after they were first injured. Instead, they argue that the statute of limitations was tolled by the pendency of a federal class action filed in the United States District Court for the Middle District of Tennessee on September 15, 2005, which alleged similar injuries and raised similar claims. In particular, the plaintiffs argue that the “rule” of American Pipe should apply, and, accordingly, that the statute of limitations should have been tolled from September 2005 until the motion for class certification was denied in that case in January 2008—in other words, for some 28 months.
The District Court rejected the plaintiffs' argument that American Pipe applied to their claims and concluded instead that Virginia law controlled the timeliness of the action. Relying on the Fourth Circuit's decision in Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999), which predicted that the Supreme Court of Virginia would reject tolling for federal class actions filed in foreign jurisdictions, the District Court held that Virginia law did not permit tolling of a state statute of limitations due to the pendency of a class action filed in another jurisdiction. See In re Fosamax Prods. Liab. Litig., 694 F.Supp.2d 253, 258 (S.D.N.Y.2010). We agree with the District Court that Virginia law governs the question of whether the plaintiffs' claims were tolled pending the Tennessee class action. But, both Wade itself, and state and federal court decisions in Virginia since Wade, leave us less certain whether equitable or statutory cross-jurisdictional tolling is available under Virginia law. Accordingly, we certify the following two questions to the Supreme Court of Virginia and stay resolution of these cases in the interim:
(1) Does Virginia law permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?
(2) Does Va.Code Ann. § 8.01–229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?
Fosamax is a prescription drug manufactured by Merck that falls within a class of drugs known as bisphosphonates, which are commonly used to treat bone conditions such as osteoperosis. Fosamax is a nitrogenous bisphosphonate, and nitrogenous bisphosphonates have allegedly been linked to osteonecrosis—bone death—of the jaw. Plaintiff Rebecca Quarles was prescribed and took Fosamax for roughly six months starting in 2002. She was diagnosed with osteonecrosis of the jaw and failure of dental implants on October 31, 2003, and sued Merck on December 17, 2007. Dorothy Deloriea was prescribed and took Fosamax in 1999, and developed osteomyelitis and osteonecrosis of the jaw in 2004. She commenced her action against Merck on November 12, 2008. Ora Casey was prescribed and took Fosamax for four years, beginning in July 2000. She was diagnosed with osteonecrosis of the jaw in 2004, and died three years later, in December 2007. Casey's estate initiated this action on January 25, 2008. Roberta Brodin was prescribed and took Fosamax beginning in February 2001 and was diagnosed with osteonecrosis of the jaw in 2005. She initiated her action on May 1, 2007.
Quarles, Deloriea, Casey, and Brodin each sued Merck in separate actions in the Southern District of New York, raising exclusively Virginia state law claims. The actions asserted diversity of citizenship as the basis for federal jurisdiction and alleged common claims for strict liability, failure to warn, breach of express and implied warranty, and negligence in the design, testing, development, manufacture, labeling, marketing, distribution and sale of Fosamax.2
In September 2005, before the plaintiffs filed these cases, a putative class action asserting substantially identical claims on behalf of a nationwide class of Fosamax users was filed in the Middle District of Tennessee. That action, Wolfe v. Merck, was transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation.3 The District Court denied the motion to certify the class in Wolfe v. Merck on January 28, 2008. See In re Fosamax Prods. Liab. Litig., No. 1:06–md–01789 (S.D.N.Y. Jan. 28, 2008) (). At least for purposes of this appeal, Merck concedes that the plaintiffs would have been members of the certified class had the certification motion been granted by the District Court.
On June 23, 2009, Merck moved for summary judgment against all three plaintiffs, arguing that New York's borrowing statute required application of Virginia's two-year statute of limitations. Merck further argued that, because the plaintiffs' complaints were all filed more than four years after they allegedly sustained their injuries, their claims were time-barred.
Citing American Pipe, the plaintiffs responded that their claims were timely because Virginia's two-year statute of limitations was tolled for 28 months during the pendency of the Wolfe class action, until the District Court denied class certification. The plaintiffs argued that, under American Pipe, which involved federal claims and a federal statute of limitations, the filing of a putative class action tolls the limitations period for absent class members, regardless of whether the claims of absent members arise under federal or state law or whether the applicable state's law permits tolling.
On March 15, 2010, the District Court granted Merck's summary judgment motion. See In re Fosamax Prods. Liab. Litig., 694 F.Supp.2d 253 (S.D.N.Y.2010). The court agreed with Merck that New York choice of law rules applied and that New York's borrowing statute, N.Y. C.P.L.R. 202, required application of “the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.” Id. at 256 (quoting Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir.1998)) (internal quotation marks omitted). Because the cause of action accrued in Virginia, the District Court applied Virginia's shorter, two-year statute of limitations. Id.
The District Court rejected the plaintiffs' contention that the pendency of the Wolfe class action tolled Virginia's limitations period for their claims. The court observed that American Pipe involved the tolling of a federal statute of limitations period based on the filing of a prior federal, rather than state, cause of action. Id. at 257. It held, relying on our decision in In re Agent Orange Product Liability Litigation, 818 F.2d 210, 213 (2d Cir.1987), that “a federal diversity court applies state law in determining whether a statute of limitations has been tolled,” and that “the applicable state statute of limitations—here, that of Virginia—was tolled during the pendency of the Wolfe class action only if the American Pipe rule also applies under the laws of that state.” 694 F.Supp.2d at 257.
The District Court next addressed whether Virginia law would allow the Wolfe class action filed in a foreign jurisdiction (Tennessee) to toll the limitations period of an action arising in Virginia—in other words, whether Virginia law would allow for “cross-jurisdictional class action tolling.” Id. at 257. The District Court asserted that “[n]o Virginia court has answered these questions,” id. at 258, but that the Fourth Circuit had “definitively” held that “the Virginia Supreme Court would not adopt a cross-jurisdictional equitable tolling rule.” Id. (quoting Wade, 182 F.3d at 287) (internal quotation marks omitted). Deferring to Wade, the District Court found that the plaintiffs' claims were not tolled and were therefore untimely under Virginia law. It accordingly granted summary judgment in favor of Merck. 694 F.Supp.2d at 259.
This appeal followed.
The central question in this appeal is whether the pendency of a putative class action filed in a different jurisdiction tolled the statute of limitations for the plaintiffs' state law claims. That question turns on (1) whether state or federal tolling law applies in this context and (2)...
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...no relief.”) (quoting Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 718–19 (8th Cir. 1993)). 134. Casey v. Merck & Co., Inc., 653 F.3d 95, 100 (2d Cir. 2011) (noting that “the majority of our sister courts that have addressed the issue” have reached this conclusion). See also In re V......