Brodin v. Merck & Co.

694 F. Supp. 2d 253, 2010 WL 908926
CourtDistrict Court, S.D. New York
DecidedMarch 15, 2010
DocketNo. 1:07-cv-03466-JFK; No. 1:08-cv-00896-JFK; No. 1:08-cv-09728-JFK; No. 1:07-cv-11334-JFK; No. 1:06-MD-1789-JFK
StatusPublished
Cited by1 cases

This text of 694 F. Supp. 2d 253 (Brodin v. Merck & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brodin v. Merck & Co., 694 F. Supp. 2d 253, 2010 WL 908926 (S.D.N.Y. 2010).

Opinion

MEMORANDUM OPINION & ORDER

JOHN F. KEENAN, District Judge:

Plaintiffs are Virginia residents who brought suit against Defendant Merck Sharp & Dohme Corporation (“Merck”) for alleged jaw injuries caused by Merck’s prescription osteoporosis drug Fosamax. Merck moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure claiming that Plaintiffs’ [256]*256claims are time-barred by Virginia’s two-year statute of limitations. For the reasons that follow, Merck’s motion is granted.

I. BACKGROUND

The relevant facts are not disputed. Plaintiffs are citizens and residents of Virginia who filed suit in this Court under federal diversity jurisdiction. Plaintiffs resided in, were prescribed Fosamax in, and were allegedly injured in the Commonwealth of Virginia.

Plaintiff Brodin alleges that she sustained an injury caused by Fosamax in March 2004, but she did not file suit until May 1, 2007.

Plaintiff Casey brought this action on January 25, 2008 on behalf of the estate of his wife who died on December 31, 2007. Casey claims that his wife developed her Fosamax-related injury in June 2004. Casey also brings a loss of consortium claim on his own behalf.1

Plaintiff DeLoriea filed suit on November 12, 2008. She provided in her sworn profile form that her injury occurred on May 24, 2004. DeLoriea now disputes this fact, asserting that her medical records do not evidence that she sustained an injury before October 2004.

Plaintiff Quarles alleges that her injury occurred in October 2003, at the latest. She filed the instant action on December 17, 2007.

In sum, it is undisputed that all four plaintiffs filed suit more than two years after the latest possible date that they sustained their respective alleged injuries.

A federal class action on behalf of a nationwide class of plaintiffs who allegedly suffered personal injuries due to the use of Fosamax was filed in the United States District Court for the Middle District of Tennessee on September 15, 2005. That action, Wolfe et al. v. Merck & Co., Inc., was transferred to this Court as part of this multi-district litigation. This Court denied the motion for class certification in that action on January 28, 2008.

II. DISCUSSION

“[I]t is well established that in diversity cases state law governs not only the limitations period but also the commencement of the limitations period.” Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 709 (2d Cir.2002). New York choice of law rules apply to the instant matter as a federal court sitting in diversity applies the choice of law rules of the state in which it sits. Id. at 710; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

The relevant statute here, New York’s “borrowing statute,” N.Y. C.P.L.R. § 202, provides that when a non-resident brings a cause of action that arose outside of New York, the Court “must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir.1998). The statute of limitations for personal injury claims is three years in New York, N.Y. C.P.L.R. § 214(5), and two years in Virginia — the state in which Plaintiffs’ causes of action accrued. Va.Code Ann. § 8.01-243(A). Therefore, the Court applies the Virginia two-year statute of limitations to Plaintiffs’ claims.2

[257]*257Plaintiffs do not contest that the Virginia two-year statute of limitations applies to their actions. Rather, in their joint opposition to Merck’s motion for summary judgment, Plaintiffs contend that all four cases were timely filed under American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), because the statute of limitations was tolled for roughly 28 months during the pendency of the Wolfe action before the Court declined to certify a class.

Under the rule first articulated by the United States Supreme Court in American Pipe, the filing of a class action complaint “suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. 756. The Court believed a contrary holding “would deprive Rule 23 class actions of the efficiency and economy of litigation” as proposed class members would be inclined to file suit in the event the court later found the proposed class unsuitable. Id. at 553, 94 S.Ct. 756. The Court later expanded the American Pipe doctrine, holding that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983).

The tolling issue is not as straight-forward as Plaintiffs suggest because the instant actions materially differ from American Pipe and Crown, Cork & Seal in two ways. Those cases involved a federal statute of limitations period on a federal cause of action whereas Plaintiffs in the instant action assert exclusively state law claims. As previously stated, it is accepted that a federal diversity court applies state law in determining whether a statute of limitations has been tolled. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 213 (2d Cir.1987) (holding that state, not federal law, applies to tolling issues, including American Pipe tolling); In re Rezulin Prods. Liab. Litig., No. 00 Civ. 2843, 2006 WL 695253, at *1 (S.D.N.Y. Mar. 15, 2006) (declining to toll the statute of limitations under American Pipe because “where, as here, a plaintiff seeks to toll a state statute on purely state law claims, state law rather than federal law governs” (quotation omitted)). Therefore, in this multi-district litigation, 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.

In the instant matter, the Wolfe class action was filed in Tennessee and no Fosamax-related class actions were filed in Virginia. The federal tolling rule originally set forth in American Pipe does not address whether a class action filed in state court tolls the limitations period of an action filed in another jurisdiction. Some states that have adopted American Pipe

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Fosamax Products Liability Litigation
694 F. Supp. 2d 253 (S.D. New York, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
694 F. Supp. 2d 253, 2010 WL 908926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brodin-v-merck-co-nysd-2010.