Va. Supreme Court rules in Merck class action

RICHMOND, Va. (Legal Newsline) -- The Virginia Supreme Court has issued a ruling in the case of Casey v. Merck & Co.

The United States Court of Appeals for the Second Circuit had asked the Virginia court to rule on two issues regarding Virginia law and a statute of limitations for class actions.

A class action was filed in the U.S. District Court for the Middle District of Tennessee on Sept. 15, 2005, in the case of Wolfe v. Merck & Co. The representative plaintiffs in the class action alleged claims of strict liability, negligence and medical monitoring against Merck.

The case was transferred to the United States District Court for the Southern District of New York by the Multidistrict Litigation Judicial Panel, which consolidated certain Fosamax cases.

The Southern District of New York denied class certification and dismissed the Wolfe class action Jan. 28, 2008. But, before this case was dismissed, four Virginia plaintiffs filed individual state law based actions against Merck in the Southern District of New York, asserting federal diversity jurisdiction.

Merck moved for summary judgment, alleging that the actions were "untimely under Virginia's two-year statute of limitations for personal injuries."

The plaintiffs claimed, in response, that the Wolfe class action, 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 court granted Merck's motion. It found that while the Wolfe was awaiting settlement it did not "toll Virginia's limitations period for the four plaintiffs' state law claims."

The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. The Appeals court said Virginia law governed this. It sent the case to the Virginia Supreme Court to determine:

"(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?"

The Virginia Supreme Court said, "For the filing of an action to toll the statute of limitations from running on a subsequently filed action pursuant to [statutory tolling], there must be identity of the parties in the two lawsuits ... 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.

"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 Virginia responded to the questions asked by the Appeals Court: "... this Court holds that Virginia recognizes neither equitable nor statutory tolling due to the pendency of a putative class action in another jurisdiction."