Second Circuit Punts Tolling Question in Fosamax Injury Case to Virginia Supreme Court – Casey et al. v. Merck

By August 19, 2011 July 18th, 2019 Dangerous Drugs

Because drug companies have a lot of resources at their disposal — far more than ordinary people dealing with prescription drug injuries — they frequently fight claims brought by pharmaceutical injury attorneys like me on procedural grounds. By claiming the lawsuit was brought too late or in the wrong state, they may be able to delay the case or drive up the costs so much that plaintiffs can’t or decide not to proceed. In Casey et al. v. Merck & Co. Inc., pharmaceutical giant Merck was fighting four lawsuits brought by families in Virginia who suffered serious injuries after a family member took the drug Fosamax (alendronate sodium) for osteoarthritis. The Second U.S. Circuit Court of Appeals ultimately decided that the Virginia Supreme Court should decide whether the families missed their deadline to sue.
All four of the plaintiffs took Fosamax for osteoarthritis and later developed osteonecrosis of the jaw, a condition in which the jawbone literally dies and creates lesions in the mouth that cause pain and sometimes infections. All four sued Merck for their injuries between May of 2007 and November of 2008. Merck moved to dismiss all the claims, arguing that plaintiffs had waited to sue past Virginia’s two-year statute of limitations, because most were injured four years before filing suit. However, a proposed class action on the same topic was filed in 2005; class certification was denied in January of 2008. The plaintiffs argued under American Pipe & Construction Company v. Utah that the statute of limitations should be tolled during the class action, regardless of whether the applicable state law permits it. The district court disagreed, ruling that American Pipe applies only if it applies under Virginia law. The Fourth Circuit, which covers Virginia, had found that the Virginia Supreme Court would not adopt cross-jurisdictional equitable tolling, so the district court declined to apply it here and dismissed the case. The plaintiffs appealed.
The Second Circuit (which covers New York, where the Merck lawsuits were filed) was not so hasty. It sided with several other circuit courts that had decided the law of the relevant state should decide whether a class action tolls a statute of limitations. In this case, the relevant state is Virginia, and the Second found that it lacked enough indications of Virginia state law on the matter. Thus, the court said it was more appropriate to certify a question to the Virginia Supreme Court rather than rely on Fourth Circuit precedent. It therefore certified two questions:
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. Sec. 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?
As a pharmaceutical liability lawyer, I sympathize with the plaintiffs who were expecting a yes or no answer from the Second Circuit and instead got another delay. But I also think the Virginia Supreme Court’s answer to those questions could be very important to injured Virginians, so it’s good that the court can now choose to address them. When a class action is dismissed, as it is in this case, it doesn’t end the injured plaintiffs’ right to sue; they may still sue as individuals. However, in order to do that, they must be able to file those suits within their states’ statutes of limitations, which can be difficult if the class action was pending for two years or more. Thus, American Pipe guards the right of injured people to sue. As a defective drug attorney, I know that right can be very, very important — not only to serve justice, but also to ensure that seriously injured people have a chance to collect the money they need to support themselves and get medical care.


If you or someone you love was seriously hurt by taking a prescription or over-the-counter drug, Carey, Danis & Lowe can help. Based in St. Louis and southern Illinois, we represent clients across the United States with claims against drug manufacturers. For a free consultation, send us an email or call today at 1-877-678-3400.
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