Virginia Supreme Court Rules Deadline to Sue Not Waived by Actions in Other Courts – Casey v. Merck

By March 15, 2012 Dangerous Drugs

As a pharmaceutical injury lawyer, I was interested to see a recent opinion reminding victims of drug injuries that they need to file their claims quickly — because drug companies will find a way to stop lawsuits if they can. In Casey et al. v. Merck, plaintiffs, all from Virginia, alleged that their or their loved ones’ use of Fosamax (aledronate) caused oseonecrosis of the jaw. This is the death of jawbone tissue, creating painful mouth lesions and a high chance of infection. The FDA started receiving thousands of reports of osteonecrosis associated with Fosamax and other drugs in its class in 2003, and issued a warning in 2005. Plaintiffs sued Foxamax maker Merck in the district court for New York City. Their lawsuit came after the expiration of Virginia’s statute of limitations but also after a Fosamax class action had been filed, which they said extended the deadline to sue.
The class action was filed in Tennessee in 2005 and moved to New York as part of consolidating multidistrict litigation. Some time later, Casey and the other three Virginia plaintiffs filed individual actions in New York against Merck. The class action was subsequently dismissed in January of 2008. Merck then moved to dismiss the Virginia actions, saying they were undisputedly past the statute of limitations. Plaintiffs argued that the deadline should be tolled, or suspended, because the class action was pending at that time and they would have been plaintiffs in that action if it had survived. However, the district court disagreed and granted the motion to dismiss. After an appeal, the Second U.S. Circuit Court of Appeals decided that Virginia law determines whether the statute of limitations was tolled, and asked the Virginia Supreme Court to decide this matter of Virginia law.
The high court ultimately decided that Virginia law allows neither equitable nor statutory tolling of the statute of limitations. The plaintiffs alleged only Virginia state causes of action, so there’s no doubt that Virginia law applies, it said. The high court first dispensed with the issue of equitable tolling. Referring to earlier rulings, the court said statutes of limitations must be strictly enforced, and that any doubt must be resolved in favor of the statute. Thus, no such tolling exists in Virginia, it said. More time was spent on the question of statutory tolling, which does exist under Virginia law. The Virginia Supreme Court agreed that foreign actions may toll the statute of limitations and that there’s no limit on the type of foreign action. However, it said the actions must be filed by the same party over the same issues. This case didn’t meet that requirement because Virginia law does not recognize class actions, and thus the class representative could not be identified with the current plaintiffs. Thus, the high court found no tolling.
As a defective prescription drug attorney, I’m sorry to see that these plaintiffs will not have their day in court. The dangers of Fosamax and other drugs in the bisphosphonate class were not understood until about 10 years ago, when reports started flooding in from patients, doctors and oral surgeons. This was about seven years after Fosamax was approved for sale in the U.S., and may also have been driven by increasing lawsuits in the early 2000s over the risks of hormone replacement therapy drugs like Premarin. Fosamax is an alternative that is also used to prevent osteoporosis — but as patients discovered, it has its own risks. As a dangerous prescription drug lawyer, I hope most patients who suffered osteonecrosis get to have their cases heard fairly.


Carey, Danis & Lowe represents clients across the United States who suffered serious illnesses or injuries or the death of a loved one because of a dangerous prescription drug. If you or someone you love was hurt and you’d like to discuss your options and your rights, call us today at 1-877-678-3400 or send us a message online.
Similar blog posts:
Second Circuit Punts Tolling Question in Fosamax Injury Case to Virginia Supreme Court – Casey et al. v. Merck
Eighth Circuit Dismisses Hormone Replacement Therapy Cases as Time Barred in New York – Rick et al. v. Wyeth
New Jersey Supreme Court Allows Accutane IBD to Go Forward – Kendall v. Hoffman-LaRoche