Before the Court is Merck & Co., Inc.’s second Motion for Summary Judgment (Rec.Doc.12725) on statutes of limitations grounds. As it now stands, the instant motion addresses the claims of three plaintiffs from Pennsylvania, one plaintiff from Puerto Rico, and one plaintiff from Illinois, all of which are part of this MDL in the three above-captioned cases. 1 On March 22, 2007, the Court denied a similar motion involving three individual plaintiffs from Alabama, Tennessee, and Kentucky. See In re Vioxx Prods. Liab. Litig., 478 F.Supp.2d 897 (E.D.La.2007). In that decision, the Court found that factual disputes precluded a summary determination of when the applicable statutes of limitations began to run, and therefore the Court did not reach the issue of whether the relevant limitations periods had been tolled, either by the pendency of class actions or otherwise. Id. at 908-10. At that time, the Court was concerned that eventually it could “conceivably be faced with the task of applying each state’s statute[s] of limitations in this multidistrict litigation,” id. at 902, a daunting task and one not to be undertaken until the litigation had matured.
This litigation has now matured to a point at which it is appropriate to consider these issues in greater detail. It is now clear that the factual disputes identified by the plaintiffs regarding when they knew or could have been put on notice of potential claims against Merck are baseless disputes. First, the highly publicized withdrawal of Vioxx from the market on September 30, 2004 and the immediate media blitz that followed linking Vioxx use to increased cardiovascular risks gave ample notice to potential claimants and triggered the applicable statutes of limitations in these cases. Second, the plaintiffs’ claims in the above-captioned cases, most of which were filed beyond the applicable limitations periods, are not saved by any state-law tolling doctrines. Thus, the bulk of these claims are time-barred. Accordingly, Merck’s motion will now be GRANTED IN PART and DENIED IN PART such that the claims of the identified plaintiffs will be DISMISSED WITH PREJUDICE in their entirety, except for the
1. BACKGROUND
This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration (“FDA”) approved Vioxx for sale in the United States. 2
Vioxx was subjected to a number of studies and tests both before and after its initial approval. In March 2000, Merck received the preliminary results of the Vioxx GI Outcomes Research (“VIGOR”) study. VIGOR was an 8,000-patient trial designed to assess the relative incidence of gastrointestinal perforations, ulcers, and bleeds (“PUBs”) in rheumatoid arthritis patients treated with Vioxx as compared to those treated with the drug naproxen. While VIGOR demonstrated that patients taking Vioxx suffered fewer serious gastrointestinal PUBs than patients taking naproxen, it also showed that patients on Vioxx suffered a statistically significant increase of serious cardiovascular thrombotic events compared to patients taking na-proxen. 3 In light of the new data obtained in the VIGOR study, Merck submitted a proposed label change for Vioxx to the FDA in June 2000. The FDA eventually approved a revised Vioxx label on April 11, 2002.
Following the public release of the VIGOR data, the media began reporting as early as 2000 that the use of Vioxx might be linked to increased cardiovascular risks. 4 Indeed, the first Vioxx-related class action was filed in 2001 shortly after the announcement of the VIGOR results. See Lettieri, et al. v. Merck & Co., Inc., et al, CV 01-3441 (E.D.N.Y. filed May 23, 2001). Widespread press coverage continued following FDA approval of a revised Vioxx label in 2002. 5
On September 23, 2004, an external safety board monitoring the results of a separate long-term study, known as APPROVe, informed Merck that the interim data from this study showed a significantly increased rate of cardiovascular events in the Vioxx arm as compared to the placebo arm of the study. One week later, on September 30, 2004, Merck voluntarily withdrew Vioxx from the market. In conjunction with the withdrawal, Merck’s then-CEO Raymond Gilmartin issued a public letter to patients informing them of the risks exposed by the APPROVe study and one of Merck’s Vice Presidents sent a
The withdrawal of Vioxx from the market was arguably the largest and most-publicized prescription drug withdrawal in this country’s history. It is estimated that 105 million prescriptions were written for Vioxx in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. The announcement that this widely popular drug was being withdrawn from the market was met with an immediate avalanche of media coverage. On the morning of September 30, 2004, the national television network morning shows reported extensively on the withdrawal of Vioxx, including NBC’s The Today Show, ABC’s Good Morning America, CBS’s Early Show, and CNN’s American Morning. National coverage continued throughout the day with reports on National Public Radio and the networks’ evening news broadcasts. The next day, October 1, 2004, saw more television coverage of the withdrawal and an onslaught of front-page stories in newspapers across the country. 6 This avalanche of media coverage penetrated into local markets as well, with local television stations and newspapers across the country running similar reports, including in Pennsylvania, Puerto Rico, and Illinois. 7
II. PRESENT MOTION
On October 22, 2007, Merck filed the instant motion for summary judgment on statutes of limitations grounds in several individual cases. A brief summary of the facts of each case that remains subject to the motion follows;
• Pennsylvania: James Barrall, Carol Ciabattoni, and Alonzo Dusi reside in Pennsylvania. James Barrall began using Vioxx in November 2002 and allegedly suffered a stroke in May 2003. It is not clear from the record when Carol Ciabattoni began using Vioxx, but she allegedly suffered a heart attack in October 2003. Alonzo Dusi alleges that his wife Catherine Dusi began using Vioxx in November 2002 and that she suffered a heart attack and died on February 7, 2003. These three plaintiffs’ claims were filed on February 1, 2007 in this Court as part of DeVito, et al. v. Merck & Co., Inc., No. 07-562.
• Puerto Rico: Milagros Medina-Alfa-nador resides in Puerto Rico and began using Vioxx in December 2000. She allegedly experienced strong pain and throbbing in her heart in 2001. Her claims were filed on October 2, 2006 in this Court as part of Alvarado, et al. v. Merck & Co., Inc., No. 06-7150.
• Illinois: Ronald Pales resides in Illinois. He began using Vioxx in August1999 and allegedly suffered an ischemic stroke on August 1, 2001. His case was filed on January 10, 2007 in Illinois state court and was subsequently removed and transferred into this MDL and assigned the following case number in this District: Pales v. Merck & Co., Inc., No. 07-1389. 8
Merck argues that the bulk of these plaintiffs’ claims are time-barred pursuant to any conceivably applicable statutes of limitations and, therefore, that it is entitled to summary judgment. More specifically, Merck contends that at the very latest, the various limitations periods began to run on September 30, 2004 when Vioxx was withdrawn from the market, and that the plaintiffs are not entitled to any form of tolling beyond this date under the relevant state laws. Merck also argues that, although timely, the remainder of the plaintiffs’ claims fail as a matter of law for various reasons.
Re-urging the arguments it made in opposition to Merck’s first statutes of limitations motion, the Plaintiffs’ Steering Committee argues that the plaintiffs’ claims are timely based on a combination of the discovery rule and the fraudulent concealment doctrine (both of which may delay the running of limitations periods) and tolling of the applicable limitations periods under the doctrine announced in
American Pipe & Construction Co. v. Utah,
III. LAW & ANALYSIS
Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the defendant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). While “[t]he issue of whether a suit is time-barred is a question of law, which properly may be resolved at the summary judgment stage,” this is only true “if there are no
genuine
issues of material fact in dispute.”
In re Minn. Mut. Life Ins. Co. Sales Practices Litig.,
The United States Supreme Court has instructed that state statutes of limitations are “matters of local law properly to be respected by federal courts sitting” in diversity.
Guar. Trust Co. of N.Y v. York,
The analytical framework for addressing the instant motion is essentially identical to that set forth in the Court’s previous statutes of limitations decision in this MDL.
See In re Vioxx Prods. Liab. Litig.,
But the actual analysis is somewhat more complicated here because the instant motion involves both cases filed directly in this Court pursuant to Pretrial Order No. 11 (the Pennsylvania and Puerto Rico plaintiffs) and a case filed elsewhere and subsequently transferred into this MDL pursuant to 28 U.S.C. § 1407 (the Illinois plaintiff). 10 Accordingly, the Court will address each category of cases separately. Prior to doing so, however, it is appropriate to say a few more words about class action tolling and the American Pipe doctrine.
The class action tolling doctrine announced in
American Pipe & Construction Co. v. Utah,
Merck attacks this concept by arguing that any rationale for tolling based on
American Pipe
should not be applied in this MDL “because it is unreasonable for plaintiffs to rely on the potential certification of a class of persons allegedly injured by a pharmaceutical drug, since such classes are rarely certified.”
Id.
at 907 n. 3. This may be true, but such a broad argument ignores the nuances and differences which exist among various state laws. The better approach is to consider class action tolling issues in the context of the law of the particular states at issue. In applying state-law tolling doctrines, however, the Court will not presumptuously affect a “substantive innovation” on behalf of the states by expanding upon their limited class action tolling holdings.
See Rhynes v. Branick Mfg. Corp.,
B. Pennsylvania & Puerto Rico Plaintiffs
The Pennsylvania and Puerto Rico plaintiffs identified in the instant motion filed their claims directly in this Court pursuant to Pretrial Order No. 11. The Court previously discussed the use of direct filing in this MDL and has concluded that Louisiana’s choice-of-law rules must be applied in such cases, unless, of course, the parties stipulate otherwise.
See In re Vioxx Prods. Liab. Litig.,
A. When the substantive law of this state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies.
B. When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
(1) If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice.
(2) If the action is not barred under the law of this state, the action shall be maintained unless it would be barred in the state whose law is applicable to the merits and maintenance of the action in this state is not warranted by the policies of this state and its relationship to the parties or the dispute nor by any compelling considerations of remedial justice.
C. Notwithstanding the foregoing provisions, if the substantive law of another state would be applicable to the merits of an action brought in this state and the action is brought by or on behalf of any person who, at the time the cause of action arose, neither resided in nor was domiciled in this state, the action shall be barred if it is barred by a statute of limitation or repose or by a law of prescription or preemption of the other state, and that statute or law is, under the laws of the other state, deemed to be substantive, rather than procedural, or deemed to bar or extinguish the right that is sought to be enforced in the action and not merely the remedy.
La. Civ.Code Ann. art. 3549.
Because the Court has previously concluded on numerous occasions that the substantive law of the plaintiffs’ home states will govern their respective claims against Merck, subsection (A) of Article 3549 is inapplicable.
See In re Vioxx Prods. Liab. Litig.,
2. Pennsylvania Law
The three Pennsylvania plaintiffs filed their claims as part of the
De Vito
case on February 1, 2007. Specifically, James Barrall, Carol Ciabattoni, and Alonzo Dusi each assert identical claims for strict products liability — defective design (Count I), strict products liability — failure to warn (Count II), negligent design (Count III), negligence — failure to warn (Count IV), negligent misrepresentation (Count V), fraudulent omission-concealment (Count VI), breach of implied warranty (Count VII), and breach of express warranty (Count VIII). As noted above, Barrall and
Pennsylvania observes a two-year limitations period for personal injury and wrongful death claims in products liability cases.
See
42 Pa. Cons.Stat. Ann. § 5524(2). Generally, this statute of limitations begins to run “when the injury is inflicted.”
Fine v. Checcio,
Applying these principles to the plaintiffs’ strict liability and negligence claims in Counts I, II, III, and IV, and drawing all justifiable inferences in their favor, the Court finds that, at the very latest, Pennsylvania’s two-year statute of limitations began to run on September 30, 2004. Both the national and local media coverage of the withdrawal of Vioxx from the market were sufficient to put the plaintiffs on notice of a potential link between their alleged injuries and the use of Vioxx.
See, e.g., Martin v. Daikon Shield Claimants Trust,
No. 93-2652,
The plaintiffs’ misrepresentation and omission claims in Counts V and VI are also subject to Pennsylvania’s two-year statute of limitations, see 42 Pa. Cons.Stat. Ann. § 5524(7), and are therefore time-barred for the reasons expressed above.
The plaintiffs’ warranty claims in Counts VII and VIII are subject to a four-year statute of limitations under Pennsylvania law.
See
13 Pa. Cons.Stat. Ann. § 2725(a). In their case-specific opposition, the plaintiffs argue that this limitations period began to run from the dates of their respective injuries. However, Pennsylvania law provides otherwise: “In the ordinary case, a breach of warranty action accrues on, and suit must be filed within four years of, the date the seller tenders delivery of the goods, even if the breach is
Lastly, the Court finds that the plaintiffs’ claims are not saved by
American Pipe
tolling under Pennsylvania law. Although Pennsylvania does recognize class action tolling, “the filing of a class action in another state does not toll the statute of limitations as to a subsequent action filed in Pennsylvania’s state court system.”
Ravitch v. Pricewaterhouse,
2. Puerto Rico Law
The Puerto Rico plaintiff filed her claims as part of the Alvarado case on October 2, 2006. Specifically, Milagros Medina-Alfa-nador asserts claims for strict products liability — defective design and failure to warn (Count I), negligence and/or wantonness (Count II), violations of the New Jersey Consumer Protection Act (Count III), breach of express warranty (Count IV), breach of implied warranty (Count V), fraudulent misrepresentation (Count VI), and fraudulent omission — suppression (Count VII).
“Ever since the days of the Spanish-American war it has been the law of Puerto Rico that the limitations period for tort actions, or obligations arising from fault or negligence, is the one year limitations period provided by Article 1868(2) of the Civil Code, P.R. Laws Ann. tit. 31, § 5298(2).”
Rodriguez Narvaez v. Nazario,
Applying these principles to the plaintiffs strict liability and negligence claims in Counts I and II, and drawing all justifiable inferences in her favor, the Court finds that, at the very latest, Puerto Rico’s one-year statute of limitations began to run on September 30, 2004. Both the national and local media coverage of the withdrawal of Vioxx from the market were sufficient to put the plaintiff on notice of a potential link between her alleged injuries and the use of Vioxx.
See, e.g., Quintana Lopez v. Liggett Group, Inc.,
There was, from before the drug was taken off the market, a debate about long-term versus short-term use of the drug. From before the withdrawal dates, plaintiffs argued that even short term use could cause heart attacks and even today Merck argues that short term use doesn’t result in heart attacks, despite the various studies and publications that have been published in the medical journals over the last few years.... It is clear from the overwhelming weight of authority that plaintiffs attempts to parse the claims against defendant into short-term user and long-term user discovery dates is not appropriate. Plaintiff was aware of Vioxx as the potential cause of her heart attack following Vioxx’s withdrawal from the market.
Oldfield v. Merck & Co., Inc.,
No. ATL-L-2-07, slip op. at 4-5 (NJ.Sup.Ct. Oct. 15, 2007). This Court agrees. Indeed, “due diligence does not mean waiting for answers to fall from the sky, but rather requires reasonable, active efforts to seek answers and clarify doubts.”
Estate of Ayala,
The plaintiffs claim in Count III under the New Jersey Consumer Protection Act fails because the Court has concluded on many occasions in this MDL that the claims of individual plaintiffs will be governed by the substantive law of their home states. Moreover, Puerto Rico law does not provide for a private right of action for consumer fraud.
See Simonet v. SmithKline Beecham Corp.,
The plaintiffs warranty claims in Counts IV and V are subject to either six-month or one-year statutes of limitations under Puerto Rico law, depending on how they are characterized.
See Ramos Santiago v. Wellcraft Marine Corp.,
Lastly, the Court finds that the plaintiffs claims are not saved by
American Pipe
tolling under Puerto Rico law. Although Puerto Rico does recognize class action tolling,
see Rivera Castillo v. Municipio de San Juan,
3. Application of Louisiana Civil Code Article 3549(B)
In a previous discussion of Article 3549 in this MDL, the Court ruled out the possibility that subsection (B) may save claims that are untimely under the law of the plaintiffs’ home states:
Without discussing whether or not the plaintiffs’ claims would be timely under Louisiana law, the Court finds that maintenance of these actions in this state “is not warranted by the policies of this state and its relationship to the parties or the dispute nor by any compelling considerations of remedial justice.” As noted, the only reason these cases were filed in Louisiana is because this Court issued Pretrial Order No. 11 in an effort to streamline the MDL process. Accordingly, Louisiana’s only interest in these cases arises from the fact that this MDL Court sits in Louisiana. Such a nominal interest, without more, cannot satisfy Article 3549(B)(2).
In re Vioxx Prods. Liab. Litig.,
Following the United States Court of Appeals for the Fifth Circuit’s lead in
Marchesani,
the Court looks to the Revision Comments accompanying Article 3549 to determine whether the “high standards for displacing Louisiana’s law of prescrip
[Article 3549(B)(2)] reaffirms the basic rule of the lex fori [law of the forum, here Louisiana] for actions that have been filed timely under Louisiana prescription or peremption law. Here the rationale for following that rule is that entertaining such actions promotes whatever substantive policies this state has in not providing for a shorter prescriptive period and preserves to the plaintiff the opportunity to fully pursue his judicial remedies as long as he does so within the time specified by the law of this state. These substantive and procedural policies underlying Louisiana prescription law are entitled to preference in a Louisiana court, unless it is amply demonstrated that neither set of policies is actually implicated in the particular case and that the opposing substantive policies of another state, that of the lex causae [law of the place of injury, here Pennsylvania and Puerto Rico], are implicated more intimately. Only then may Louisiana law be displaced.
La. Civ.Code Ann. art. 3549, Revision Comment (g).
First, the Court is convinced that it has been “amply demonstrated” that neither set of Louisiana’s policies are actually implicated in cases directly filed in this MDL pursuant to Pretrial Order No. 11 and, therefore, that maintenance of such actions is not “warranted by the policies” of Louisiana. Revision Comment (i) explains that this evaluation should “be based on an examination of the relationship, if any, that this state has with the parties or their dispute.” La. Civ.Code Ann. art. 3549, Revision Comment (i). As the Court previously noted, “Louisiana’s only interest in these cases arises from the fact that this MDL Court sits in Louisiana.”
In re Vioxx Prods. Liab. Litig.,
Second, the Court is also convinced that maintenance of these cases is not “warranted by any compelling considerations of remedial justice.” Such considerations would include circumstances where an alternative forum is unavailable due to lack of jurisdiction over a defendant, or where an alternative forum would be extremely
C. Illinois Plaintiff
The Illinois plaintiff identified in the instant motion originally filed suit in Illinois state court on January 10, 2007, and his case was subsequently removed and transferred into this MDL pursuant to 28 U.S.C. § 1407. Specifically, Ronald Pales asserts claims for negligence and gross negligence, negligence — sale of product, common law-fraud — failure to disclose, common-law strict liability, and breach of warranties (express and implied).
In these circumstances, the Court will apply Illinois’ choice-of-law rules to select the applicable statutes of limitations.
See Ferens v. John Deere Co.,
Illinois employs a two-year statute of limitations for personal injury claims.
See
735 Ill. Comp. Stat. 5/13-202. Under Illinois’ discovery rule, the running of the limitations period commences when a plaintiff possesses “sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.”
Knox College v. Celotex Corp.,
Applying these principles to the plaintiffs strict liability and negligence claims, and drawing all justifiable inferences in his favor, the Court finds that, at the very latest, Illinois’ two-year statute of limitations began to run on September 30, 2004. Both the national and local media coverage of the withdrawal of Vioxx from the market were sufficient to put the plaintiff on notice of a potential link between his alleged injuries and the use of Vioxx.
See, e.g., Carey v. Kerr-McGee Chem.
Corp.,
In his case-specific opposition, the plaintiff contends that Illinois’ two-year statute of limitations began to run from the date of his alleged injury and therefore expired in August 2003, but that his claims are nevertheless timely under Illinois’ five-year fraudulent concealment statute, which, according to the plaintiff, began to run on September 30, 2004.
See
735 Ill.Comp. Stat. 5/13-215. Relying on
Berry v. G.D. Searle & Co.,
The plaintiffs common-law fraud claim is subject to Illinois’ catch-all five-year statute of limitations.
See
735 Ill. Comp. Stat. 5/13-205. Assuming, as the Court has done above, that this limitations period began to run on September 30, 2004 when Vioxx was withdrawn from the market, the plaintiffs common-law fraud claim appears to be timely. Merck argues, however, that the plaintiff has failed to allege that Merck made any false statements of “material” fact, but rather that the company merely failed to disclose certain information. Moreover, Merck argues that it did not have a duty to disclose the allegedly concealed facts to the plaintiff. To prevail on his common-law fraud claim, the plaintiff must prove: “(1) a false statement of material fact; (2) the party making the statement knew or believed it to be untrue; (3) the party to whom the statement was made had a right to rely on the statement; (4) the party to whom the statement was made did rely on the statement; (5) the statement was made for the purpose of inducing the other party to act; and (6) the reliance by the person to whom the statement was made led to that person’s injury.”
Siegel v. Levy Org. Dev. Co.,
Lastly, the Court finds that the plaintiffs claims are not saved by
American Pipe
tolling under Illinois law. Although Illinois does recognize class action tolling, the Supreme Court of Illinois has explicitly rejected cross-jurisdictional tolling.
See Portwood v. Ford Motor Co.,
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Merck’s Motion for Summary Judgment (Rec.Doc. 12725) is GRANTED IN PART and DENIED IN PART such that the claims of the identified plaintiffs are hereby DISMISSED WITH PREJUDICE in their entirety, except for the Illinois plaintiffs common-law fraud claim.
Notes
. Merck’s motion originally addressed the claims of three additional plaintiffs from Illinois in the following cases: Durbin v. Merck & Co., Inc., No. 06-11302; McKeal v. Merck & Co., Inc., No. 07-380; and Ridinger v. Merck & Co., Inc., No. 07-381. However, the Court has been informed that Merck has withdrawn its motion with respect to these cases. See Rec. Doc. 12922. Accordingly, IT IS ORDERED that Merck’s motion is DENIED AS MOOT IN PART with respect to these three plaintiffs.
At the outset, it should also be noted that the Court initially allowed multiple unrelated claimants to join their claims together in the same complaint in this MDL for administrative purposes. But on September 5, 2007, the Court issued Pretrial Order No. 26, which prohibits this practice moving forward in light of administrative difficulties that have surfaced and the potential for abuse it has created.
See
Rec. Doc. 12181;
see also In re Baycol Prods. Liab. Litig.,
MDL No. 1431,
. For a more detailed medical background, see
In re Vioxx Prods. Liab. Litig.,
. The VIGOR data was published in the New England Journal of Medicine in 2000. See Claire. Bombardier, et al., Comparison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis, 343 New Eng. J. Med. 1520 (Nov. 23, 2000).
. See, e.g., Edward R. Silverman, Merck Shares Fall on Vioxx Study, Painkiller Linked to Cardiovascular Problems, Star-Ledger (Newark, N.J.), Apr. 29, 2000, at 17; Rita Rubin, Vioxx Might Raise Heart Risk, USA Today, Feb. 9, 2001, at 5B; Joe Graedon & Teresa Graedon, Vioxx May Increase Risk of Stroke, Star-Ledger (Newark, N.J.), Nov. 6, 2001, at 43.
.See, e.g., Company News; Merck to Revise Label Information for Vioxx, N.Y. Times, Apr. 12, 2002, at C2; Gardiner Harris, Label Change for Merck’s Vioxx Adds Ulcer Protection, Heart Risk, Wall St. J., Apr. 12, 2002, at A17.
. See, e.g., Thomas H. Maugh II & Denise Gellene, Arthritis Drug Vioxx Pulled: Risk of Heart Attacks is Cited, L.A. Times, Oct. 1, 2004, at A1; Rita Rubin, Merck Halts Vioxx Sales, USA Today, Oct. 1, 2004, at Al; Gina Kolata, A Widely Used Arthritis Drug is Withdrawn, N.Y. Times, Oct. 1, 2004, at A1; Mark Kaufman, Merck Withdraws Arthritis Medication — Vioxx Maker Cites Users’ Health Risks, Wash. Post, Oct. 1, 2004, at A01.
. See, e.g., Linda Lloyd, Merck Pulls Vioxx, Philadelphia Inquirer, Oct. 1, 2004, at Al; Cindy Stauffer, Arthritis Drug Yanked; Doctors Urge Calm, The Lancaster New Era, Oct. 1, 2004, at A1; Bruce Jaspen, Merck Withdraws Arthritis Drug: Vioxx Increased Danger to Heart, Chicago Tribune, Oct. 1, 2004; Edith Brady-Lunny, Doctors Taking Calls on Vioxx, The Pantagraph (Bloomington, IL), Oct. 1, 2004, at A1; Maria Vera, Fabricante retira la popular “Vioxx", El Vocero de Puerto Rico, Oct. 1, 2004.
. This summary of the usage and injury information for each of the plaintiffs is based on both allegations in their complaints and answers they provided on the Plaintiff Profile Form, as required by Pretrial Order No. 18C. The complaints and profile forms for these plaintiffs are attached to Merck’s instant motion as exhibits 79, 80, 83, 84, 85, 86, 87, and 88.
. Choosing the applicable limitations periods involves two steps. First, the Court must select which state’s body of law is applicable in each case. Then, the Court must select the appropriate limitations periods within that body of law for each of the plaintiff's claims. In carrying out the later step, the Court is mindful that the states approach this issue in different ways:
Most product liability suits are pleaded in more than one count. Breach of warranty (implied, or express, or both), negligence, strict liability in tort, and perhaps fraud or deceit are possible bases for the suit.... The elements of each cause of action are different, as are the seller’s possible defenses, and there is no uniformity as to the length of the limitation periods that apply. A negligence claim, for example, will be governed by the tort statute of limitations, or perhaps the personal-injury statute. A cause of action in strict liability will also probably be controlled by the tort or personal-injury statute of limitations. On the other hand, a claim for breach of warranty might be governed by the [Uniform Commercial Code’s] statute of limitations, or by the personal-injury or tort statute, depending on whether personal injury or privity is alleged. Fraud or deceit is usually controlled by a specific statute of limitations, but if personal injury is alleged, then the personal-injury statute might be used.
Chris Williams,
The Statute of Limitations, Prospective Warranties, and Problems of Interpretation in Article Two of the UCC,
52 Geo. Wash. L.Rev. 67, 108 (1983) (footnotes omitted);
see also Garcia v. Texas Instruments, Inc.,
. Pretrial Order No. 11 allows plaintiffs who do not reside in this District to nevertheless file their claims directly into the MDL, thereby avoiding the expense and delay associated with filing in local federal courts around the country and waiting for the Panel to transfer these “tag-along” actions to this District. However, Pretrial Order No. 11 is merely a procedural vehicle constructed to reduce costs and promote efficiency; it was not intended to alter the substantive legal landscape. Moreover, Pretrial Order No. 11 provides that cases filed directly into the MDL will be transferred to courts of proper venue pursuant to 28 U.S.C. § 1404(a) upon the completion of all pretrial proceedings.
See In re Vioxx Prods. Liab. Litig.,
. In this MDL, the Court has sought to achieve the efficiencies celebrated by
American Pipe
through the use of "tolling agreements,” whereby individual plaintiffs who allege cardiovascular injuries have been allowed to preserve their rights without filing suit, provided that they execute tolling agreements with Merck and submit certain information about their injuries and use of Vioxx.
See
Rec. Doc. 429. This practice recognizes that
American Pipe’s
underlying concern for judicial economy is frustrated when individual plaintiffs file lawsuits despite the fact that they may be putative members of pending class actions. Several courts have relied on this fact alone to find that plaintiffs who file individual suits forfeit any tolling benefits under
American Pipe. See In re Hanford Nuclear Reservation Litig.,
. At first glance, the plaintiffs’ claims would appear to be untimely under Louisiana law as well, in light of Louisiana’s one-year prescriptive periods for personal injury and wrongful death claims, see La. Civ.Code Ann. art. 3492, misrepresentation and omission claims, see La.Rev.Stat. Ann. § 51:1409(e), and warranty claims, see La. Civ.Code Ann art. 2534. And although Louisiana recognizes its own versions of the discovery rule and the fraudulent concealment doctrine, these concepts likely do not save the plaintiffs’ claims for the reasons expressed above with respect to Pennsylvania and Puerto Rico law. However, the plaintiffs’ claims may potentially be timely under Louisiana’s expansive class action tolling doctrine.
See, e.g., Smith v. Cutter Biological,
99-2068,
. The Court notes that if in fact the plaintiff's injury could be considered a "sudden traumatic injury" for purposes of the discovery rule, his claims would nevertheless be untimely because section 5/13-215 would not apply in such circumstances.
See, e.g., Lowe v. Ford Motor Co.,
. The Court does not, however, pass judgment on the merits of the plaintiff's common-law fraud claim. Indeed, although this claim may be timely, it is likely to face future challenges in terms of an enhanced burden of proof on causation and recoverable damages. Moreover, all such claims must also satisfy Rule 9(b)’s particularity pleading requirement.