Casey v. Merck & Co., Inc.

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
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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,
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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."
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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
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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
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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").
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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,
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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
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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
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For these reasons, this Court holds that Virginia
recognizes neither equitable nor statutory tolling due to the
pendency of a putative class action in another jurisdiction.
Certified questions answered in the negative.
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