In re Vioxx Products Liability Litigation, MDL No. 1657.

• Decision Date: 22 March 2007
• Docket Number: MDL No. 1657.
• Citation: 478 F.Supp.2d 897
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: In re VIOXX PRODUCTS LIABILITY LITIGATION. This Document Relates To: Edmonds, et al. v. Merck & Co., Inc., No. 05-5450 Stinson v. Merck & Co., Inc., No. 05-5494 Watson v. Merck & Co., Inc., No. 05-5545.

478 F.Supp.2d 897

In re VIOXX PRODUCTS LIABILITY LITIGATION.

This Document Relates To:

Edmonds, et al. v. Merck & Co., Inc., No. 05-5450

Stinson v. Merck & Co., Inc., No. 05-5494

Watson v. Merck & Co., Inc., No. 05-5545.

MDL No. 1657.

United States District Court, E.D. Louisiana.

March 22, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leonard A. Davis, Russ M. Herman, Herman, Herman, Katz & Cotlar, LLP, New Orleans, LA, Kimberly K. Hardeman Moyer & Bergman, PLC, Cedar Rapids, IA, for Plaintiff.

Phillip A. Wittmann, Stone Pigman Walther Wittmann, LLC, New Orleans, LA, for Defendant.

ORDER & REASONS

FALLON, District Judge.

Before the Court is Merck & Co., Inc.'s ("Merck") Motion for Summary Judgment (Rec.Doc.7345) in three individual Vioxx cases on statutes of limitations grounds. The Court heard oral argument and took this motion under submission. Given the existence of factual disputes regarding both the triggering and tolling of the various limitations periods, Merck's motion is now DENIED.

I. BACKGROUND

This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration approved Vioxx for sale in the United States. Vioxx remained available to the public until September 30, 2004, at which time Merck withdrew it from the market when data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. On February 16, 2005, the Judicial Panel on Multidistrict Litigation conferred multidistrict litigation ("MDL") status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See In re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352 (J.P.M.L. 2005).¹

II. PRESENT MOTION

On September 22, 2006, Merck filed the instant motion for summary judgment in the following three individual Vioxx cases:

• Edmonds, et al. v. Merck & Co., Inc., No. 05-5450: Boyd and Janet Edmonds reside in Guntersville, Alabama. Mr. Edmonds allegedly suffered non-fatal heart attacks on March 27, 2001 and September 2, 2001 as a result of taking Vioxx. Their case was filed on November 7, 2005 in this Court.

• Stinson v. Merck & Co., Inc., No. 05-5494: Donald Stinson resides in Cheatham County, Tennessee. Mr. Stinson allegedly suffered a non-fatal heart attack on October 14, 2000 as a result of taking Vioxx. His case was filed on November 8, 2005 in this Court.

• Watson v. Merck & Co., Inc., No. 05-5545: Timothy Watson resides in Cadiz, Kentucky. Mr. Watson allegedly suffered a non-fatal stroke on August 23, 2002 as a result of taking Vioxx. His case was filed on November 14, 2005 in this Court.

Merck argues that these plaintiffs' claims are time-barred pursuant to any conceivably applicable statute of limitations and therefore that it is entitled to summary judgment. However, the Plaintiffs' Steering Committee ("PSC") argues that the plaintiffs' claims are timely based on a combination of the discovery rule (which delays the running of the relevant limitations periods) and tolling of the applicable limitations periods under the doctrine announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Merck responds that American Pipe tolling should no longer be recognized in pharmaceutical personal injury cases, but that even if this Court applies American Pipe, the plaintiffs' claims could only have been tolled from May 23, 2001, until September 18, 2002, during which Vioxx personal injury class claims were pending in the Lettieri/Cain case in federal court in the Eastern District of New York. See Lettieri, et al. v. Merck & Co., Inc., et al., CV 01-3441 (E.D.N.Y. filed May 23, 2001). To the extent that tolling is necessary to preserve the plaintiffs' claims, the PSC contends that the plaintiffs' claims were tolled by one of several class actions filed after the withdrawal of Vioxx from the market on September 30, 2004, and that the Lettieri/Cain case is immaterial for purposes of American Pipe tolling.

III. LAW & ANALYSIS

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the defendant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). While "[t]he issue of whether a suit is time-barred is a question of law, which properly may be resolved at the summary judgment stage," this is only true "if there are no genuine issues of material fact in dispute." In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 835 (8th Cir.2003). "The moving party bears the burden of demonstrating that there exists no genuine issue of material fact." In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 475 F.Supp.2d 286-87 (2006). "In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor." Id.

The United States Supreme Court has instructed that state statutes of limitations are "matters of local law properly to be respected by federal courts sitting" in diversity. Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 110-11, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Given that this MDL currently contains cases transferred from every State in the Union, and that federal jurisdiction in these cases is premised on diversity of citizenship, the Court could conceivably be faced with the task of applying each state's statute of limitations in this multidistrict litigation. For purposes of the present motion, however, the Court is asked to examine only three cases.

The Court must first determine which state's choice-of-law rules to apply in these cases. Then, pursuant to those rules, it must choose the applicable statutes of limitations. Lastly, the Court must determine when each limitations period began to run and whether or not the applicable statutes of limitations have been tolled by the pendency of a class action under the American Pipe doctrine or otherwise. Merck will be entitled to summary judgment only if the Court can determine that the applicable limitations periods expired prior to the filing of the plaintiffs' respective complaints.

A. Which State's Choice-of-Law Rules Should Be Applied?

"[I]n diversity lawsuits, a federal court is ordinarily bound to look to the choice of law rules of the state in which it sits to determine whether the state courts of that state would apply their own state's statute of limitations or the statute of limitations of some other state." Long Island Trust Co. v. Dicker, 659 F.2d 641, 645 (5th Cir.1981); see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As noted, all three of the instant cases were filed directly into this MDL in the Eastern District of Louisiana by non-Louisiana citizens. While the parties seemingly agree that this renders Louisiana the forum state and that the Court should therefore apply Louisiana's choice-of-law rules to select the applicable statutes of limitations, this result will not be precipitously reached. Having experimented with direct filing in these cases to eliminate some administrative inefficiencies of multidistrict litigation, it is appropriate to say a few words about the implications of this practice in cases premised on diversity jurisdiction.

Traditionally, the cases in any given MDL originate from two sources.

First, the majority of cases are filed in, or removed to, federal courts across the country and transferred to the MDL court by the Judicial Panel on Multidistrict Litigation. See 28 U.S.C. § 1407(a). In these cases, the MDL court must apply the law of the transferor forum, that is, the law of the state in which the action was filed, including the transferor forum's choice-of-law rules. See Ferens v. John Deere Co., 494 U.S. 516, 524, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). While the precise limits of the MDL court's authority over such cases is currently subject to debate, it is clear that the court cannot try these cases, but rather must remand them to the transferor forum when pretrial discovery is complete. See Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). This MDL currently consists of approximately 6,000 such cases.

Second, a number of cases are often filed directly into the MDL by citizens who reside in the MDL court's judicial district. In this MDL, approximately 350 cases have been filed in the Eastern District of Louisiana by citizens of Louisiana. These cases would have been filed here whether or not an MDL existed in this district. In these cases, the MDL court must apply its own state law, that is, the law of the state in which it sits. It is undisputed that the MDL court has complete authority over every aspect of these cases.

In this MDL, however, Pretrial Order No. 11 has created a third category of cases filed directly into the MDL by plaintiffs who do not reside in this district. Pretrial Order No. 11 provides as follows:

A. Waiver of...