We’ve had a longstanding interest in a topic, cross-jurisdictional class action tolling, the very name of which screams “esoteric”. You might think that it screams something worse than that, but hey, we’re guys who blog about drug and medical device litigation for fun – so we’re incapable of being insulted in that fashion.
Anyway, because we’re interested in preventing unsuccessful class actions in one jurisdiction from stopping the statute of limitations from running against people suing our clients in different jurisdictions, we’ve already blogged about what we knew on this dangerous (and thankfully not widely accepted) topic.
We’re happy to report that the judge handling the multi-district federal Vioxx litigation has recently issued three decisions that refuse to expand the scope of cross-jurisdictional class action tolling: In re Vioxx Products Liability Litigation, 2007 WL 3332708 (E.D. La. Nov. 8, 2007); In re Vioxx Products Liability Litigation, 2007 WL 3334339 (E.D. La. Nov. 8, 2007); and In re Vioxx Products Liability Litigation, 2007 WL 3353404 (E.D. La. Nov. 8, 2007) .
Now, whenever the word “Vioxx” raises its head, we have to tread carefully. Bexis is involved in that litigation, but he has a limited special dispensation that allows him to discuss legal issues that arise in it, as long as nothing specific to Vioxx is mentioned. So that’s what we’re going to do here.
The problem with cross-jurisdictional class action tolling it that a single meritless class action filing – anywhere in the country – would stop the running of the statute of limitations in any other jurisdiction cold. That’s a mere filing, not a decision or anything else ruled on by a judge.
We think: (1) that’s crazy, and (2) it invites the filing of meritless class actions by providing a significant benefit that doesn’t depend on merit. It’s bad enough within the same jurisdiction, but intolerable when one state’s courts purport to affect a different state’s statute of limitations.
Fortunately Judge Fallon in the three Vioxx decisions agreed. As we pointed out in the prior post, only two states (Ohio (at a time when its Supreme Court favored plaintiffs 4-3 in everything) and NJ) have decided to allow cross-jurisdictional class action tolling after a full discussion of the pros and cons. Two more states (W. Va. and Mo.) did so on cursory review. As for federal courts, such as the Vioxx MDL, our biggest concern is that, case specific reasons of administrative convenience and uniformity, a judge will decide to run roughshod over Erie principles mandating state control over development of state law.
That concern certainly never happened in Vioxx. The key to the three Vioxx decisions isn’t really their analysis of the various states’ laws at issue – but rather the court’s attitude towards the judicial restraint principles that inherent in the Erie doctrine. As to that overarching issue, the court stated, “[a]bsent clear guidance. . ., the Court will not expand [a state’s] class action tolling doctrine.” 2007 WL 3332708, at *7; 2007 WL 3334339, at *3; 2007 WL 3353404, at *3. In all three instances the court properly cited Wade v. Danek Medical, Inc., 182 F.3d 281, 286-88 (4th Cir. 1999), for the judicial restraint proposition. We’re more than happy with that, because Wade, a bone screw case, is one of Bexis’ prides and joys.
The Wade principle – that courts exercising federal diversity jurisdiction (if you want to know more about what that is, go here) must refrain from “expand[ing]” liability where there’s no “clear guidance” from the relevant state courts – isn’t just applicable to statute of limitations issues. Rather, it’s a fundamental proposition that extends to all aspects of diversity cases.
Needless to say, as defense lawyers we’re 100% in favor of anything that keeps federal judges from boldly finding liability where no state court judge has done before. That’s why we devoted one of our earliest posts to this precise topic.
The next interesting topic deals with the status (if any) of the statute of limitations of the state where the multi-district litigation happens to be located. Again taking a position that we generally agree with (if by chance an MDL we were involved in landed in a jurisdiction with a peculiarly short statute of limitations, we might look for a loophole), the Vioxx court held that there’s no basis for applying the statute of limitations of the forum state for the MDL to claims involving out-of-state plaintiffs – even if the MDL judge allowed such foreign plaintiffs to file directly in that state. This is one manifestation of a question we flagged as important a while back, so we’re graciously accepting accolades for our prescience.
That ruling makes sense because, as we’ve also discussed before, MDLs are assigned for a variety of reasons, but the law of the assigned jurisdiction isn’t supposed to be one of them:
[T]he Court is convinced that it has been amply demonstrated that [no MDL forum state] policies are actually implicated in cases directly filed in this MDL. . . As the Court previously noted, [the MDL forum state’s] only interest in these cases arises from the fact that this MDL Court sits in [this state]. In fact, [the MDL forum state’s] only interest is more tenuous than that because it is not the mere presence of an MDL in this District that has allowed foreign plaintiffs to file suit in this forum against a foreign defendant, but rather this Court’s experimentation with direct filing. . . . [Direct filing] was crafted to eliminate part of the expense and delay associated with this aspect of traditional MDL practice, not to alter the substantive rights of foreign litigants. Thus, [the MDL forum state’s] interest in providing a longer [statutory] period is in no way adversely affected by the dismissal of these particular actions as untimely under [other states’] law. . . . [The] status as the forum state in these cases is somewhat fictional.
2007 WL 3332708, at *10-11 (lots of citations and quotation marks omitted) (emphasis added).
There’s enough game playing in the selection of MDL locations such as it is – not just which state is which plaintiffs’ lawyer’s backyard, but more substantive issues such as what is the law of the state’s circuit on federal issues such as preemption. We’d hate to see the forum state’s statute of limitations or choice of law rules get thrown into that already overfull hopper.
So we think that the Vioxx judge got it as right as he could when he ruled that the statute of limitations of the MDL forum state has no role to play in choice of law analysis as it pertains to cross-jurisdictional class action tolling. But having said that, we must note our puzzlement with the footnote in the court’s opinion which states “the plaintiffs’ claims may potentially be timely under Louisiana’s expansive class action tolling doctrine.” 2007 WL 3332708, at *10 n.12.
In that footnote, Judge Fallon cites a case, Smith v. Cutter Biological, 770 So.2d 392, 408-10 (La. App. 2000), for the proposition that Louisiana (the forum state for the Vioxx MDL) “recognize[es] cross-jurisdictional class action tolling.” We’ve never put Louisiana in that small group of states that permits cross-jurisdictional tolling. That’s hardly conclusive, since we’ve been wrong before, but we’re sure going to have a look for ourselves.
So when we read the cited case, we’re really confused. First, the Louisiana statute that’s discussed in Smith, §3462, doesn’t mentions class-action tolling, and a comment to the statute says that “[i]t does not change the law.” Smith itself declined to affirm on the trial court’s rejection of cross-jurisdictional class action tolling, but also stayed well away from actually adopting this kind of tolling:
[T]his Court  agree[s] with the result reached by the trial judge more because of what we view as plaintiff’s attempt to “stack” class actions rather than a reliance by this Court on a rejection of theories of class action cross-jurisdictional interruption of prescription [that’s Louisianan for tolling the statute of limitations].
770 So.2d at 408. Smith then analyzed the “stacking” question at some length, always careful to address class-action tolling as a hypothetical situation. Id. at 409 (“to the extent that rescription may have been interrupted”) (“Assuming for purposes of argument that [the other class action] suspended the running of prescription”). We’d say that this rather equivocal stance is a lot less than the “clear guidance” that the Erie doctrine requires – although Judge Fallon’s “may potentially be timely” statement is hardly a ringing endorsement in and of itself.
Anyway, Louisiana was irrelevant because, as at most a nominal forum state, none of its interests were affected. As to the plaintiffs’ actual home states, we think that the Vioxx court hit all the right nails right on the head.
Pennsylvania – The court found that Pennsylvania affirmatively rejected cross-jurisdictional tolling, 2007 WL 3332708, at *7, and cited the same case we cited in our post for that proposition.
Puerto Rico – The court determined that no Puerto Rico court had ever “explicitly adopted” cross-jurisdictional tolling. Id. at *9. That’s pretty much what we thought, since we’d not found any cases from this jurisdiction either. Under Erie lack of precedent either way was the kiss of death for liability-expanding arguments.
Illinois – The court stated that that Illinois “has explicitly rejected cross-jurisdictional tolling.” Id. at *13. If anything that’s an understatement, since we quote from the relevant Illinois Supreme Court opinion in our post at some length. With the possible exception of Tennessee, Illinois has more forcefully rejected cross-jurisdictional class action tolling than any other state.
Texas – In the first companion Vioxx case, Judge Fallon rules that all the available authority has Texas rejecting cross-jurisdictional tolling. 2007 WL 3334339, at *3. That’s how we peg Texas as well in our post, since there’s no definitive supreme court ruling, but lower court rulings hostile to this sort of tolling.
California – Judge Fallon called California right as well – catching the nuance that the supreme court rejection of such tolling was limited to the mass tort context. Id. at *5. Our post said pretty much the same thing about this state.
Indiana – This is another “not explicitly adopted” state. Id. at *6. That’s where we think it goes too, since we don’t know of any Indiana case that addresses cross-jurisdictional class action tolling one way or the other.
Kentucky – In the second companion Vioxx decision, the court held that: (1) Kentucky had never recognized any form of class action tolling, (2) there were never any in-state Vioxx class actions, and (3) without any guidance in either direction the court would not make an Erie prediction that would increase liability by tolling the statute of limitations. 2007 WL 3353404, at *3. That accords with what we thought, since we know of no precedent on cross-jurisdictional tolling from Kentucky.
Tennessee – The court also found that Tennessee affirmatively rejected cross-jurisdictional tolling, id., at *5, and cited the same case we cited in our post for that proposition.
We’re not at liberty in this post to say anything Vioxx specific, so we won’t. Our view of these three decisions is: (1) they’re exemplars of the proper exercise of judicial restraint in the Erie context – something that’s been particularly problematic in mass torts, and (2) Judge Fallon got the substantive cross-jurisdictional class action tolling call right in every state where it mattered.