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No Tolling by Putative Class Action

On two questions certified to the Supreme Court of Virginia by the 2nd U.S. Circuit Court of Appeals in this products liability litigation over the drug Fosamax, the Supreme Court holds that Virginia law does not permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction, nor does Va. Code § 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.

The representative plaintiffs in the class action of Wolfe v. Merck & Co. asserted claims of strict liability, negligence and medical monitoring against defendant pharmaceutical company. Prior to a New York district court’s dismissal of Wolfe, four Virginia plaintiffs filed individual state-law based actions against Merck in the New York federal court, asserting federal diversity jurisdiction. All four allegedly suffered from osteonecrosis of the jaw as a result of taking Fosamax.  The district court said all four plaintiffs filed suit more than two years after the latest possible date they sustained their respective alleged injuries, and that Virginia law applied to the claims.

Plaintiffs claimed the Wolfe putative class action, which was filed within the two-year limitation period, tolled the running of the Virginia statute of limitations on their individual actions because they would have been members of the proposed class had certification been granted. The New York federal court dismissed the Virginia plaintiffs’ claims, plaintiffs appealed and the 2nd U.S. Circuit Court of Appeals certified to this court the two questions relating to tolling of the statute of limitations.

Turning to the first certified question, there is no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based on the pendency of a putative class action in another jurisdiction, and that question is answered in the negative.

As to the second certified question, in order to toll the statute of limitations, the plaintiff in the first suit must have legal standing to assert the rights that are at issue in the second lawsuit. A putative class action is a representative action in which a representative plaintiff attempts to represent the interests of not only named plaintiffs, but also those of unnamed class members. Virginia jurisprudence does not recognize class actions. Under Virginia law, a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members of the putative class. Thus, under Virginia law, there is no identity of parties between the named plaintiff in a putative class action and the named plaintiff in a  subsequent action filed by a putative class member individually.

A putative class action cannot toll the running of the statutory period for unnamed putative class members who are not recognized under Virginia law as plaintiffs or represented plaintiffs in the original action.

The certified questions are answered in the negative.

Casey v. Merck & Co. (Goodwyn) No. 111438, March 2, 2012; Upon Certified Questions; Monica T. Monday, James J. O’Keeffe, Timothy M. O’Brien for appellants; Dino S. Sangiamo, Paul F. Strain, David J. Heubeck, William D. Dolan III for appellee. VLW 012-6-022, 11 pp.

VLW 012-6-022

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