Brodin et al v. Merck & Co., Inc.

Filing 76

MEMORANDUM OPINION & ORDER. Plaintiffs are Virginia residents who brought suit against Defendant Merck Sharp & Dohme Corporation (Merck) for alleged jaw injuries caused by Mercks prescription osteoporosis drug Fosamax. Merck moves for summary judgmen t pursuant to Rule 56 of the Federal Rules of Civil Procedure claiming that Plaintiffs claims are time-barred by Virginias two-year statute of limitations... The pendency of the Wolfe class action did not toll Virginias two-year statute of limitation s and thus all claims are time-barred. Merck's motion for summary judgment is granted. The four actions are dismissed. Relates to 06md1789, 07-3466, 08-0896, 08-9728, 07-11334. (Signed by Judge John F. Keenan on 3/15/10) Filed In Associated Cases: 1:06-md-01789-JFK-JCF, 1:07-cv-03466-JFK, 1:07-cv-11334-JFK, 1:08-cv-09728-JFK(rjm)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------x IN RE: FOSAMAX PRODUCTS LIABILITY : 1:06-MD-1789-JFK LITIGATION : -------------------------------------x MEMORANDUM This Document Relates to: : OPINION & ORDER : Brodin v. Merck & Co., Inc. : Case No. 1:07-cv-03466-JFK : : : Casey v. Merck & Co., Inc. Case No. 1:08-cv-00896-JFK : : DeLoriea v. Merck & Co., Inc. : Case No. 1:08-cv-09728-JFK : : : Quarles v. Merck & Co., Inc. Case No. 1:07-cv-11334-JFK : -------------------------------------x JOHN F. KEENAN, United States District Judge: Plaintiffs are Virginia residents who brought suit against Defendant Merck Sharp & Dohme Corporation ("Merck") for alleged jaw injuries caused by Merck's prescription osteoporosis drug Fosamax. of the Merck moves for summary judgment pursuant to Rule 56 Federal claims Rules are of Civil Procedure by claiming that

Plaintiffs'

time-barred

Virginia's

two-year

statute of limitations. motion is granted.

For the reasons that follow, Merck's

I. The relevant facts

BACKGROUND not disputed. Plaintiffs are

are

citizens and residents of Virginia who filed suit in this Court under federal diversity jurisdiction. 1 Plaintiffs resided in,

were prescribed Fosamax in, and were allegedly injured in the Commonwealth of Virginia. Plaintiff Brodin alleges that she sustained an injury

caused by Fosamax in March 2004, but she did not file suit until May 1, 2007. Plaintiff Casey brought this action on January 25, 2008 on behalf of the estate of his wife who died on December 31, 2007. Casey claims that his wife developed her Fosamax-related injury in June 2004. his own behalf.1 Plaintiff DeLoriea filed suit on November 12, 2008. She Casey also brings a loss of consortium claim on

provided in her sworn profile form that her injury occurred on May 24, 2004. DeLoriea now disputes this fact, asserting that

her medical records do not evidence that she sustained an injury before October 2004. Plaintiff Quarles alleges that her injury occurred in

October 2003, at the latest. December 17, 2007.

She filed the instant action on

In sum, it is undisputed that all four plaintiffs filed suit more than two years after the latest possible date that Plaintiffs Brodin and Quarles also assert claims of loss of consortium on behalf of their husbands. Even if those claims were not time-barred, they still would be dismissed because loss of consortium is not a cognizable claim under Virginia law. See Va. Code Ann. § 55-36; Wolford v. Budd Co., 149 F.R.D. 127, 132 (W.D. Va. 1993). 2
1

they sustained their respective alleged injuries. A federal class action on behalf of a nationwide class of plaintiffs who allegedly suffered personal injuries due to the use of Fosamax was filed in the United States District Court for the Middle District of Tennessee on September 15, 2005. That

action, Wolfe et al. v. Merck & Co., Inc., was transferred to this Court as part of this multi-district litigation. This

Court denied the motion for class certification in that action on January 28, 2008. II. DISCUSSION

"[I]t is well established that in diversity cases state law governs not only the limitations period but also the

commencement of the limitations period." Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 709 (2d Cir. 2002). New York choice

of law rules apply to the instant matter as a federal court sitting in diversity applies the choice of law rules of the state in which it sits. Id. at 710; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The relevant statute here, New York's "borrowing statute," N.Y. C.P.L.R. § 202, provides that when a non-resident brings a cause of action that arose outside of New York, the Court "must apply the shorter limitations period, including all relevant

tolling provisions, of either: (1) New York; or (2) the state 3

where the cause of action accrued." Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998). The statute of limitations

for personal injury claims is three years in New York, N.Y. C.P.L.R. § 214(5), and two years in Virginia -- the state in which Plaintiffs' causes of action accrued. Va. Code Ann. § 8.01-243(A). Therefore, the Court applies the Virginia two-year

statute of limitations to Plaintiffs' claims.2 Plaintiffs do not contest that the Virginia two-year

statute of limitations applies to their actions.

Rather, in

their joint opposition to Merck's motion for summary judgment, Plaintiffs contend that all four cases were timely filed under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), because the statute of limitations was tolled for roughly 28 months during the pendency of the Wolfe action before the Court declined to certify a class. Under the rule first articulated by the United States

Supreme Court in American Pipe, the filing of a class action complaint "suspends the applicable statute of limitations as to all asserted members of the class who would have been parties

To extent that the any of the Plaintiffs' claims are not covered by § 8.01-243(A), the Court would still apply a two-year statute of limitations under Virginia's "catch-all" provision. See Va. Code Ann. § 8.01-248 ("Every personal action . . . for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued."). 4

2

had the suit been permitted to continue as a class action." Id. at 554. Rule 23 The Court believed a contrary holding "would deprive class actions of the efficiency and economy of

litigation" as proposed class members would be inclined to file suit in the event the court later found the proposed class

unsuitable. Id. at 553.

The Court later expanded the American

Pipe doctrine, holding that "[o]nce the statute of limitations has been tolled, it remains tolled for all members of the

putative class until class certification is denied." Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983). The tolling issue is not as straight-forward as Plaintiffs suggest because the instant actions materially differ from

American Pipe and Crown, Cork & Seal in two ways.

Those cases

involved a federal statute of limitations period on a federal cause of action whereas Plaintiffs in the instant action assert exclusively state law claims. As previously stated, it is

accepted that a federal diversity court applies state law in determining whether a statute of limitations has been tolled. See In re Agent Orange Prods. Liab. Litig., 818 F.2d 210, 213 (2d Cir. 1987) (holding that state, not federal law, applies to tolling issues, including American Pipe tolling); In re Rezulin Prods. Liab. Litig., No. 00 Civ. 2843, 2006 WL 695253, at *1 (S.D.N.Y. Mar. 15, 2006) (declining 5 to toll the statute of

limitations

under

American

Pipe

because

"where,

as

here,

a

plaintiff seeks to toll a state statute on purely state law claims, state law rather than federal law governs" (quotation omitted)). Therefore, in this multi-district litigation, the

applicable state statute of limitations -- here, that of Virginia -- was tolled during the pendency of the Wolfe class action only if the American Pipe rule also applies under the laws of that state. In the instant matter, the Wolfe class action was filed in Tennessee and no Fosamax-related class actions were filed in Virginia. The federal tolling rule originally set forth in

American Pipe does not address whether a class action filed in state court tolls the limitations period of an action filed in another jurisdiction. Pipe Some states that have adopted American

tolling have refused to expand the doctrine to include

"cross-jurisdictional class action tolling," thereby declining to apply the tolling doctrine in situations where they otherwise would have if the original class action had been filed in its own jurisdiction. decisions is The the predominate prevention justification of forum underlying As

these

shopping.

explained by the Supreme Court of Illinois, "[u]nless all states simultaneously action tolling, adopt any the state rule of cross-jurisdictional independently does so class will

which 6

invite in