Lohier

NEW YORK (Legal Newsline) - A federal appeals court, in a ruling Tuesday, upheld a lower court's dismissal of claims against Merck Sharp and Dohme Corporation, the manufacturer of prescription drug Fosamax.

In its seven-page opinion, the U.S. Court of Appeals for the Second Circuit affirmed a decision by the U.S. District Court for the Southern District of New York.

The district court had concluded that the statute of limitations for a group of plaintiffs' product liability claims -- brought under Virginia law -- was not tolled by the filing of a putative federal class action that raised identical claims.

Fosamax is used to treat osteoporosis. It falls within a class of drugs that has allegedly been linked to osteonecrosis, or bone death, of the jaw.

The 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 and Co., before the Virginia plaintiffs filed their individual lawsuits.

The federal class action later was transferred to the U.S. District Court for the Southern District of New York by the Judicial Panel on Multidistrict Litigation.

The Southern District of New York dismissed the Virginia plaintiffs' claims as time-barred and granted summary judgment to Merck.

The Second Circuit determined that state law controlled the availability of tolling and certified two questions regarding equitable and statutory cross-jurisdictional tolling to the Virginia Supreme Court in August 2011:

- Does Virginia law permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?

- Also, 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 state's high court answered the questions March 2, both in the negative.

It concluded that Virginia recognizes "neither equitable nor statutory tolling due to the pendency of a putative class action in another jurisdiction."

In its ruling this week, the Second Circuit said it affirmed the Southern District of New York's judgment based on the high court's answers.

"The plaintiffs' arguments on appeal relied exclusively on their contention that the statute of limitations should have been tolled during the pendency of the Wolfe putative class action. The Supreme Court of Virginia has now confirmed that, under Virginia law, neither Virginia's tolling statute nor equitable principles provide for cross-jurisdictional tolling under these circumstances," Judge Raymond J. Lohier Jr. wrote for the Second Circuit.

"Its decision requires us to affirm the District Court's grant of summary judgment on the ground that the plaintiffs' claims are time-barred."

So far, Merck has won five of six cases that have gone to trial.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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