Casey v. Merck & Co., Inc.

• Court: Supreme Court of Virginia
• Decided: March 2, 2012
• Docket: 111438
• Status: Published

Opinion

Present: All the Justices

JOHN CASEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ORA CASEY, ET AL. OPINION BY v. Record No. 111438 JUSTICE S. BERNARD GOODWYN March 2, 2012 MERCK & CO., INC.

UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Pursuant to Article VI, Section 1 of the Constitution of

Virginia and our Rule 5:40, we accepted the following certified

questions from the United States Court of Appeals for the

Second Circuit:

(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?

Background

On September 15, 2005, a putative class action, Wolfe v.

Merck & Co., was filed in the United States District Court for

the Middle District of Tennessee. The putative class included

"[a]ll persons who consume or have consumed FOSAMAX, whether

intravenously or by mouth." The representative plaintiffs in

the class action asserted claims of strict liability,

negligence and medical monitoring against Merck & Co., Inc.

(Merck). The Wolfe putative class action was transferred to the

United States District Court for the Southern District of New

York by the Judicial Panel on Multidistrict Litigation, which

consolidated certain Fosamax cases. The Southern District of

New York denied class certification and dismissed the Wolfe

class action on January 28, 2008.

Prior to the dismissal of the Wolfe putative class action,

four plaintiffs, all residents of Virginia, filed individual

state law based actions against Merck in the Southern District

of New York, asserting federal diversity jurisdiction. All

four plaintiffs allegedly suffered from osteonecrosis of the

jaw as a result of taking Fosamax. The district court noted

that "[i]t is undisputed that all four plaintiffs filed suit

more than two years after the latest possible date that they

sustained their respective alleged injuries," and that Virginia

law applied to the claims.

Merck moved for summary judgment, alleging that the four

plaintiffs’ actions were untimely under Virginia's two-year

statute of limitations for personal injuries. In response, the

plaintiffs claimed that the Wolfe putative class action, which

was filed within the two-year limitation period, tolled the

running of the Virginia statute of limitations on their

individual actions because they would have been members of the

proposed class had certification been granted. The district

2 court granted Merck's motion, finding that the pendency of the

Wolfe putative class action did not toll Virginia's limitations

period for the four plaintiffs' state law claims.

The plaintiffs appealed to the United States Court of

Appeals for the Second Circuit. The Second Circuit determined

that Virginia law governed whether the Wolfe putative class

action tolled the running of the statute of limitations on the

plaintiffs' individual claims, and asked this Court to

determine whether Virginia law permits equitable or statutory

tolling of a Virginia statute of limitations due to the

pendency of a putative class action in another jurisdiction.

Facts

The relevant facts, as set forth in the certification

order, are not in dispute. Merck manufactures Fosamax, a

prescription drug that falls within a class of drugs known as

bisphosphonates, which are used to treat bone conditions such

as osteoporosis. Fosamax, a nitrogenous bisphosphonate, has

allegedly been linked to osteonecrosis – bone death – of the

jaw.

The four plaintiffs were prescribed and consumed Fosamax.

Rebecca Quarles was diagnosed with osteonecrosis of the jaw and

failure of dental implants in 2003 and sued Merck in 2007.

Dorothy Deloriea was prescribed and took Fosamax in 1999,

developed osteomyelitis and osteonecrosis of the jaw in 2004,

3 and filed her complaint against Merck in 2008. Ora Casey began

taking Fosamax in 2000 and was diagnosed with osteonecrosis of

the jaw in 2004. She died in 2007 and her estate initiated

this action in 2008. Roberta Brodin was prescribed and took

Fosamax in 2001 and was diagnosed with osteonecrosis of the jaw

in 2005. She initiated her action in 2007.

The plaintiffs' complaints against Merck assert

exclusively Virginia state law claims: 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. As a

result, it is agreed that Virginia law governs the question of

whether the filing of the putative class tolled the running of

the statute of limitations on their claims.

Analysis

The two certified questions of law relate to Virginia's

statute of limitations for personal injury actions. ∗ "[T]he

applicability of the statute of limitations is a purely legal

question of statutory construction." Conger v. Barrett, 280

Va. 627, 630, 702 S.E.2d 117, 118 (2010).

∗ Code § 8.01-243(A) provides: "every action for personal injuries, whatever the theory of recovery . . . shall be brought within two years after the cause of action accrues."

4 The plaintiffs contend that Virginia law permits equitable

tolling of a Virginia statute of limitations based upon the

filing of a cross-jurisdictional putative class action.

Plaintiffs also argue that the pendency of a putative class

action in another jurisdiction statutorily tolls Virginia's

statute of limitations under Code § 8.01-229(E)(1). Merck

responds that Virginia law does not permit equitable tolling of

a statute of limitations, and that Code § 8.01-229(E)(1) does

not provide for tolling due to the pendency of a putative class

action in another jurisdiction.

Certified Question (1)

It is well-established that "statutes of limitations are

strictly enforced and must be applied unless the General

Assembly has clearly created an exception to their

application." Rivera v. Witt, 257 Va. 280, 283, 512 S.E.2d

558, 559 (1999). A statute of limitations may not be tolled,

"or an exception applied, in the absence of a clear statutory

enactment to such effect." Arrington v. Peoples Sec. Life Ins.

Co., 250 Va. 52, 55-56, 458 S.E.2d 289, 291 (1995). "[A]ny

doubt must be resolved in favor of the enforcement of the

statute." Id. at 55, 458 S.E.2d at 290-91.

Given these principles, there is no authority in Virginia

jurisprudence for the equitable tolling of a statute of

limitations based upon the pendency of a putative class action

5 in another jurisdiction. Certified Question (1) is answered in

the negative.

Certified Question (2)

Code § 8.01-229(E)(1) provides that "if any action is

commenced within the prescribed limitation period and for any

cause abates or is dismissed without determining the merits,

the time such action is pending shall not be computed as part

of the period within which such action may be brought, and

another action may be brought within the remaining period."

The plaintiffs contend that Code § 8.01-229(E)(1) statutorily

tolled the statute of limitations for plaintiffs’ claims during

the pendency of the putative class action. The plaintiffs

assert that this Court's decision in Welding, Inc. v. Bland

Cnty. Serv. Auth., 261 Va. 218, 541 S.E.2d 909 (2001),

indicates that Virginia should recognize cross-jurisdictional

putative class action tolling.

In Welding, the plaintiff originally filed a breach of

contract action in the United States District Court for the

Southern District of West Virginia, but that court found it

lacked jurisdiction because of a forum selection clause in the

contract between the parties. Id. at 222, 541 S.E.2d at 911.

Subsequently, the same plaintiff filed suit in Virginia state

court on the same cause of action. Id. This Court stated

"[t]here is no language in Code § 8.01-229(E)(1) which limits

6 or restricts its application to a specific type of action or

precludes its applicability to actions filed in a federal

court." Id. at 224, 541 S.E.2d at 912. This Court also noted

that "[t]he term 'action' refers to civil litigation in both

the state and federal courts." Id. Therefore, Code § 8.01-

229(E)(1) tolled the running of the statute of limitations on

the plaintiff's action and its suit in Virginia was timely

filed. Id. at 226, 541 S.E.2d at 913.

It is clear that under Virginia law, an action filed in a

foreign jurisdiction may trigger tolling under Code § 8.01-

229(E)(1). See id. at 224, 541 S.E.2d at 912. There is no

particular type of action that must be filed and no particular

jurisdiction in which that action must be brought for the

commencement of an action to trigger tolling under Code § 8.01-

229(E)(1). However, for tolling to be permitted, the

subsequently filed action must be filed by the same party in

interest on the same cause of action in the same right. See

McDaniel v. North Carolina Pulp Co., 198 Va. 612, 619, 95

S.E.2d 201, 206 (1956), overruled on other grounds by Harmon v.

Sadjadi, 273 Va. 184, 192-93, 639 S.E.2d 294, 299 (2007)

(permitting tolling where "the real party in interest remained

the same; the suit was instituted in the same right; and the

cause of action was the same").

7 Welding differs from the instant case because it concerns

a situation where the same plaintiff initially sued in federal

court on the same cause of action he subsequently pursued in

state court. The plaintiff in both actions was clearly the

same. Whereas, in the instant matter, it is undisputed that

the four plaintiffs were not named plaintiffs in the putative

class action that they claim triggered the tolling. They were

merely members of a putative class that included every single

American who took Fosamax, whether he or she sought a refund,

medical monitoring or an award for personal injury.

For the filing of an action to toll the statute of

limitations from running on a subsequently filed action

pursuant to Code § 8.01-229(E)(1), there must be identity of

the parties in the two lawsuits. In other words, for the

statute of limitations to be tolled for a subsequent action,

the party who brought the original action must be the same as

the plaintiff in the subsequent action or a recognized

representative of that plaintiff asserting the same cause and

right of action. See McDaniel, 198 Va. at 619, 95 S.E.2d at

206. We must rely upon Virginia law to determine if this

identity of parties and rights exists.

"An individual or entity does not acquire standing to sue

in a representative capacity by asserting the rights of

another, unless authorized by statute to do so." W.S. Carnes,

8 Inc. v. Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295,

300 (1996). "Our jurisprudence is clear that when a party

without standing brings a legal action, the action so

instituted is, in effect, a legal nullity," and thus cannot

toll the statute of limitations. Harmon, 273 Va. at 193, 639

S.E.2d at 299; see also Harbour Gate Owners' Ass'n v. Berg, 232

Va. 98, 107, 348 S.E.2d 252, 258 (1986) (holding original

motion for judgment filed by plaintiff who lacked standing "did

nothing to toll the running of the statute of limitations" as

to the second suit brought by subsequent plaintiffs with

standing); Braddock, L.C. v. Board of Supervisors, 268 Va. 420,

426, 601 S.E.2d 552, 555 (2004) (action brought by party

lacking standing was a "nullity" that could not be resurrected

by adding parties with standing). In essence, to toll the

statute of limitations, the plaintiff in the first suit must

have legal standing to assert the rights that are at issue in

the second lawsuit.

A putative class action is a representative action in

which a representative plaintiff attempts to represent the

interests of not only named plaintiffs, but also those of

unnamed class members. See American Pipe & Constr. Co. v.

Utah, 414 U.S. 538, 550 (1974). Virginia jurisprudence does

not recognize class actions. Under Virginia law, a class

representative who files a putative class action is not

9 recognized as having standing to sue in a representative

capacity on behalf of the unnamed members of the putative

class. Thus, under Virginia law, there is no identity of

parties between the named plaintiff in a putative class action

and the named plaintiff in a subsequent action filed by a

putative class member individually. See Fowler v. Winchester

Med. Ctr., Inc., 266 Va. 131, 136, 580 S.E.2d 816, 818 (2003)

(noting plaintiff could not be "substantially the same party"

as the plaintiff in the first suit because she was not

qualified as a personal representative anywhere); Brake v.

Payne, 268 Va. 92, 95, 597 S.E.2d 59, 60 (2004) (holding a

plaintiff without standing and a proper plaintiff are not suing

in the same right). Consequently, a putative class action

cannot toll the running of the statutory period for unnamed

putative class members who are not recognized under Virginia

law as plaintiffs or represented plaintiffs in the original

action. See Harmon, 273 Va. at 198, 639 S.E.2d at 302.

We hold that Code § 8.01-229(E)(1) does not toll the

statute of limitations for unnamed putative class members due

to the pendency of a putative class action in another

jurisdiction. Certified question (2) is answered in the

negative.

Conclusion

10 For these reasons, this Court holds that Virginia

recognizes neither equitable nor statutory tolling due to the

Certified questions answered in the negative.