Casey v. Merck & Co., 653 F.3d 95, 100-01 (2d Cir. 2011), involved consolidated products liability actions brought by prescription drug users against a drug manufacturer. The plaintiffs asserted claims under Virginia law for strict liability, failure to warn, breach of express and implied warranty, and negligence in the design, testing, development, manufacture, labeling, marketing, distribution, and sale of drug. The defendant successfully moved for summary judgment based on Virginia's statute of limitations for personal injury actions.
The plaintiffs did not dispute that Virginia's two-year statute of limitations applied to the claims or that they filed their actions more than two years after they were first injured. However, the plaintiffs argued on appeal that the statute of limitations was tolled by the filing of a federal class action in the Middle District of Tennessee that involved similar injuries and claims. The Second Circuit considered the applicability of the class action tolling doctrine established in American Pipe & Construction Company v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), to state law causes of action and found that “a federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction.”
Thus, the Second Circuit certified two questions regarding equitable and statutory cross jurisdictional tolling to the Supreme Court of Virginia:
(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. § 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?
Please note that Va.Code Ann. § 8.01–229(E)(1) provides that “if any action is commenced within the prescribed limitation period and for any cause abates or is dismissed without determining the merits, the time such action is pending shall not be computed as part of the period within which such action may be brought, and another action may be brought within the remaining period.” The Supreme Court of Virginia answered both of the questions in the negative, concluding that “Virginia recognizes neither equitable nor statutory tolling due to the pendency of a putative class action in another jurisdiction.” Thus, the Second Circuit affirmed the District Court's grant of summary judgment on the ground that the plaintiffs' claims are time-barred.