Last week, the Virginia Supreme Court in Casey v. Merck & Co., Inc. addressed a question certified from the Second Circuit as to whether the filing of a cross-jurisdictional putative class action tolled the statute of limitations for unnamed class members under Virginia law. The VA Supreme Court answered the question in the negative, finding that the pendency of a putative class action in another jurisdiction does not toll the statute of limitations for unnamed putative class members. This decision emphasizes the importance and complexities of the procedural defense of statute of limitations in getting claims dismissed early on in the litigation.
On September 15, 2005, a putative class action was filed in Wolfe v. Merck & Co. The proposed class included all persons who consumed Fosamax, a drug used to treat bone conditions. The suit was filed in the District Court in Tennessee asserting strict liability, negligence, and medical monitoring, but was subsequently transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation. On January 28, 2008, the Southern District denied class certification and dismissed the action.
Prior to the dismissal of the Wolfe putative class, four Plaintiffs filed individual state law actions against Merck in the Southern District of New York alleging strict liability, failure to warn, breach of warranty, and negligence also relating Fosamax. The Plaintiffs were diagnosed with osteonecrosis (bone death) of the jaw, which they claimed was linked to the drug. Merck moved for summary judgment based on statute of limitations alleging that Plaintiffs’ actions were barred by Virginia’s two year statute of limitations for personal injuries. In response, Plaintiffs argued that the pendency of the Wolfe putative class, which was filed within the limitations period, tolled the running of the VA statute of limitations because they would have been members of the class had it been certified. The District Court, however, rejected Plaintiffs’ claim, and Plaintiffs appealed to the Second Circuit, which then certified the issue to the Virginia Supreme Court.
Specifically, Plaintiffs claimed that pursuant to Code § 8.01-229(E)(1), the pendency of a putative class action in another jurisdiction statutorily tolls the VA statute of limitations. That section states 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.” Plaintiffs further relied on Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218, 541 S.E.2d 909 (2001) in support of their contention that the statute of limitations was tolled. In Welding, plaintiff filed a breach of contract suit in federal court, which was dismissed for lack of jurisdiction. That same plaintiff then filed the same cause of action in VA state court. The court in Welding found that the state action was timely since § 8.01-229(E)(1) was triggered to toll the limitations period.
Although there is no particular type of action or jurisdiction in which the lawsuit must be brought in order to benefit from the tolling under § 8.01-229(E)(1), the VA Supreme Court nevertheless rejected Plaintiffs’ claim. The Court emphasized that in order to trigger the tolling “the subsequently filed action must be filed by the same party in interest on the same cause of action in the same right.” In fact, the Court pointed out that the plaintiff in Welding was the same plaintiff that initially filed suit in federal court whereas the four Plaintiffs here “were merely members of a putative class that included every single American who took Fosamax.”
Thus, the Court went on to address whether there was, in fact, identity of parties and rights in this case. The Court explained that 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 suit. Although a putative class action is an action where a plaintiff represents the interests of both named and unnamed class members, under VA law, a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members. Consequently, the Court found that there was no identity of parties between a named plaintiff in a putative class action and a plaintiff in a subsequent action filed individually by a putative class member. Accordingly, the Court concluded that a putative class action did not toll the running of the statutory period for unnamed putative class members who, under VA law, are not recognized as plaintiffs in the first action.