Fosamax Jaw Injury Claims Not Tolled By Class Action, Virginia Supreme Court Says

RICHMOND, Va. - (Mealey's)  Virginia does not recognize either equitable or statutory tolling for class actions brought by different plaintiffs in another jurisdiction, the Virginia Supreme Court ruled March 2 in an appeal by four Fosamax jaw injury plaintiffs (John Casey, et al. v. Merck & Co., Inc., No. 111438, Va. Sup.; 2012 Va. LEXIS 48).

(Opinion available. Document #28-120315-003Z.)

John Casey and three other Virginia residents filed individual lawsuits against Merck in the U.S. District Court for the Southern District of New York, where the Fosamax jaw injury multidistrict litigation is located. Each alleged that they or a family member was prescribed Merck's Fosamax to treat osteoporosis and that each developed osteonecrosis of the jaw (ONJ) as a result.

Merck moved for summary judgment, arguing that the plaintiffs missed the Virginia two-year statute of limitations. The plaintiffs argued that their actions were tolled by Wolfe v. Merck & Co., a class action that was filed in the Southern District.

Tolled By Class Action?

Wolfe was denied class certification and dismissed in January 2008. The Virginia plaintiffs argued that although they filed their lawsuits more than two years after the state statute of limitations had run, the latter was tolled by the pendency of the Wolfe action, of which they would have been class members.

The District Court granted Merck's motion, finding that Wolfe did not toll the Virginia statute of limitations.

The Virginia plaintiffs appealed. The Second Circuit U.S. Court of Appeals in 2011 found that Virginia law governed the statute of limitations but certified two questions to the Virginia Supreme Court.

The questions were: Does Virginia law permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction, and does Virginia Code Annotated Section 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?

No Tolling Authority

On the first question, the Virginia Supreme Court said that under state case law, the statute of limitations may not be tolled without clear statutory authority. "[T]here is no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action in another jurisdiction," the court wrote.

The high court said that Section 8.01-229(E)(1) tolls claims that are part of an action that is dismissed. The court said an action filed in an out-of-state court may be tolled under the law.

"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," the court said, citing state case law.

Not Named In Class Action

"[I]n 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," the court wrote. "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."

Again citing case law, the court said that when a party without standing brings a legal action, it cannot toll the statute of limitations. "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."

In addition, the Supreme Court said that Virginia jurisprudence does not recognize class actions. "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."

No Class Action Tolling

"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," the court said. "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."

The plaintiffs are represented by Monica Taylor Monday and James J. O'Keeffe of Gentry, Locke, Rakes & Moore in Roanoke, Va., and Timothy M. O'Brien of Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor in Pensacola, Fla.

Merck is represented by Dino S. Sangiamo, Paul F. Strain, David J. Heubeck and William D. Dolan III of Venable in Baltimore. 

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