Casey v. MERCK & CO., INC.
2011 U.S. App. LEXIS 16151
| 2d Cir. | 2011Background
- Virginia plaintiffs brought Virginia-law product liability claims in federal court under diversity, with a two-year Virginia statute of limitations applying.
- Plaintiffs argue tolling of Virginia’s statute occurred during the pendency of a separate putative nationwide Fosamax class action filed in Tennessee (Wolfe v. Merck).
- The district court applied Virginia law, held American Pipe tolling did not cross-jurisdictionally toll Virginia’s limitations, and granted summary judgment for Merck.
- The court also considered whether Virginia tolling statutes allow cross-jurisdictional tolling via a foreign-class action and deferred to Wade v. Danek on this question.
- The Fourth Circuit certified the question and stayed resolution to Virginia Supreme Court guidance, recognizing uncertainty in Virginia law on cross-jurisdictional tolling.
- The panel certified two questions to the Supreme Court of Virginia concerning equitable tolling and Va. Code Ann. § 8.01-229(E)(1) tolling in cross-jurisdictional class actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Virginia law permit equitable tolling from foreign putative class actions? | Quarles et al. contend tolling should apply under American Pipe. | Merck contends Virginia law does not recognize cross-jurisdictional equitable tolling. | Certified questions: Virginia law policy remains undecided. |
| Does Va.Code Ann. § 8.01-229(E)(1) toll Virginia's limitations due to a foreign putative class action? | Wolfe tolling should apply under Virginia statute. | Virginia tolling statute does not toll for foreign class actions. | Certified questions: Virginia statute interpretation remains undecided. |
Key Cases Cited
- American Pipe & Construction Co. v. Utah, 414 U.S. 538 (U.S. 1974) (class-action tolling purpose to preserve rights until certification)
- In re Agent Orange Prod. Liab. Litig., 818 F.2d 210 (2d Cir. 1987) (addressed state vs federal tolling applicability for class actions)
- Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir. 1999) (Virginia would not adopt cross-jurisdictional tolling for federal class actions)
- Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218 (Virginia Supreme Court 2001) (tolling statute applicable to actions filed in federal courts)
- Guar. Trust Co. of N.Y. v. York, 326 U.S. 99 (U.S. 1945) (federal-state tolling interplay in constitutional analyses)