U.S. Court of Appeals for the Second Circuit
Products Liability— Class Actions
Tolling Statute of Limitations — Virginia Law
Casey v. Merck & Co.
Judges Sack, Livingston and Lohier
Background: The plaintiffs appealed from the district court’s grant of summary judgment on their product liability claim for injuries allegedly caused by Fosamax, a prescription drug manufactured by Merck. The plaintiffs argued that the statute of limitations was tolled by the filing of a federal class action in a Tennessee district court. The Second Circuit had determined that state law controlled the availability of tolling and certified two questions regarding equitable and statutory cross-jurisdictional tolling to the Supreme Court of Virginia.
Ruling: The Second Circuit affirmed summary judgment. Virginia Supreme Court had determined that there was 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. Further, the court found that in order for the SOL to be tolled for a subsequent action under the Virginia Code, the party who brought the original action must be the same as the plaintiff in the subsequent action or a recognized representative. Because class actions are not recognized under Virginia 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 of the putative class.
Timothy M. O’Brien of Levin Papantonio Thomas Mitchell Echsner Rafferty & Proctor, PA for the plaintiffs-appellants; Norman C. Kleinberg, Theodore V.H. Mayer, and William J. Beausoleil of Hughes Hubbard & Reed LLP for the defendant-appellee