Federal Court Refuses to Apply Cross-Jurisdictional Tolling to Virginia Claims
Recently the federal multidistrict transferee addressing Fosamax litigation, Judge John F. Keenan, adopted the majority rule and refused to apply cross-jurisdictional tolling of a state's statute of limitations in a products liability action. See In re Fosamax Prods. Liab. Litig., 2010 WL 908926 (S.D.N.Y. Mar. 15, 2010).
In Fosamax, a number of Virginia plaintiffs had brought personal injury actions for jaw injuries allegedly caused by the osteoporosis medicine Fosamax. Each of the plaintiffs' causes of action was untimely under Virginia's two-year statute of limitations. Plaintiffs argued that this was okay because, prior to the running of the statute of limitations, some Tennessee plaintiffs had brought a nearly identical action under Tennessee law as a class action, and it had been transferred to the federal MDL. Accordingly, they argue, they were entitled to toll the statute of limitations during the pendency of state law claims in the Tennessee class action. See id. at *2 (citing American Pipe & Constr. Co. v. Utah, 515 U.S. 538 (1974)).
The Fosamax court correctly recognized that very few states have adopted the rule of "cross-jurisdictional" tolling; although they might allow a prior class action in their own state to toll the statute of limitations for subsequent individual claims filed in that state, they generally have not allowed prior pending class actions in other states or in the federal system to toll the statute of limitations on individuals' claims in their state. See id. at *3. Class action tolling, you see, is a based on a complete fiction: namely, that absent class members actually know about the prior class action and are holding off filing new claims because they are relying on the class action to protect their rights. This is, of course, for the most part totally bogus. No absent class member is actually aware of the previously-filed class action. And although it may be one thing to follow this legal fiction for classes previously-filed in your own state of residence, it is something quite different to give tolling effect to class actions that were previously filed many states away or in the federal system. Are we really supposed to buy the fiction that some group of litigants actually knew about such foreign class actions and delayed taking action to enforce their rights because they were relying upon the previously-filed foreign class action to do so?
The Fosamax court said no, recognizing that courts that reject cross-jurisdictional tolling do so, in part, because to recognize such tolling would encourage forum shopping in the jurisdiction. Moreover, for a state like Virginia -- which does not recognize class actions generally -- giving a foreign class action such tolling effect would run contrary to the state's fundamental policy choices.
