Appeal from a decision of the United States District Court for the Southern District of New York (Keenan, J.), concluding that the plaintiffs' product liability claims, brought under Virginia law, were not tolled by the pendency of a putative federal class action that raised identical claims, and dismissing the plaintiffs' claims as time-barred.
The opinion of the court was delivered by: Lohier, Circuit Judge:
Casey v. Merck & Co., Inc.
Submitted: January 27, 2011
Final Submission: February 16, 2011
Before: SACK, LIVINGSTON, and LOHIER, Circuit Judges.
We conclude that the availability of "cross- jurisdictional tolling" in this context raises questions of Virginia law that are appropriately certified to the Supreme Court of Virginia.
Questions certified to Supreme Court of Virginia.
11 This consolidated appeal involves questions of Virginia law relating to equitable and 12 statutory cross-jurisdictional tolling, and in particular whether Virginia law recognizes 13 the tolling doctrine established in American Pipe & Construction Company v. Utah, 414 U.S. 14 538 (1974).
15 The plaintiffs in these four cases appeal from a judgment of the United States District 16 Court for the Southern District of New York (Keenan, J.), granting summary judgment in favor 17 of defendant Merck Sharp & Dohme Corporation ("Merck"), formerly known as Merck & Co., 18 Inc., and dismissing their product liability claims for injuries allegedly caused by Merck's 19 prescription drug, Fosamax.*fn1 The plaintiffs filed their separate lawsuits in the Southern District 20 of New York based on diversity jurisdiction under 28 U.S.C. § 1332. 21 The plaintiffs, all residents of Virginia, raise only state law claims and do not dispute 22 either that Virginia's two-year statute of limitations applies to their claims or that they filed their 23 actions more than two years after they were first injured. Instead, they argue that the statute of 1 limitations was tolled by the pendency of a federal class action filed in the United States District 2 Court for the Middle District of Tennessee on September 15, 2005, which alleged similar injuries 3 and raised similar claims. In particular, the plaintiffs argue that the "rule" of American Pipe 4 should apply, and, accordingly, that the statute of limitations should have been tolled from 5 September 2005 until the motion for class certification was denied in that case in January 2008 - 6 in other words, for some 28 months.
7 The District Court rejected the plaintiffs' argument that American Pipe applied to their 8 claims and concluded instead that Virginia law controlled the timeliness of the action. Relying 9 on the Fourth Circuit's decision in Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir. 1999), 10 which predicted that the Supreme Court of Virginia would reject tolling for federal class actions 11 filed in foreign jurisdictions, the District Court held that Virginia law did not permit tolling of a 12 state statute of limitations due to the pendency of a class action filed in another jurisdiction. See 13 In re Fosamax Prods. Liab. Litig., 694 F. Supp. 2d 253, 258 (S.D.N.Y. 2010). We agree with the 14 District Court that Virginia law governs the question of whether the plaintiffs' claims were tolled 15 pending the Tennessee class action. But, both Wade itself, and state and federal court decisions 16 in Virginia since Wade, leave us less certain whether equitable or statutory cross-jurisdictional 17 tolling is available under Virginia law. Accordingly, we certify the following two questions to 18 the Supreme Court of Virginia and stay resolution of these cases in the interim:
19 (1) Does Virginia law permit equitable tolling of a state statute of limitations due to the 20 pendency of a putative class action in another jurisdiction?
21 (2) Does Va. Code Ann. § 8.01-229(E)(1) permit tolling of a state statute of limitations 22 due to the pendency of a putative ...