Not long ago we published, as a guest post, a 50-state survey of state tolling statutes that governed whether, and under what circumstances, actions dismissed on a non-merits basis could be refiled notwithstanding the running of the applicable statute of limitations in the interim.

Bexis had never really thought much about these kinds of statutes before – but in preparing the post for publication, he did. That led to an idea.

Bexis being Bexis, he looked up the Delaware statute cited in the post, Del. Code Ann. tit. 10 §8118. That statute provides:

(a) If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return . . . by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; . . . , or for any matter of form; or if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reversed on appeal or a writ of error; a new action may be commenced, for the same cause of action, at any time within 1 year after the abatement or other determination of the original action, or after the reversal of the judgment therein.

(Emphasis added).

There’s nothing specific, but the highlighted phrase, “in this chapter,” suggests that the original action, as to which tolling is subsequently allowed, had to have been filed in a Delaware court, since statutes of limitations are generally procedural, and an action filed in a different state’s court would not be “commenced within the time limited therefor in this chapter.”

It turns out there are actually cases addressing that issue.  Back in 1956 (the year Bexis was born), a Delaware court interpreted a statutory predecessor in precisely this fashion. That statute, like the current §8118(a), “state[d] if an action brought within the period prescribed by law is dismissed for any reason other than upon the merits, a new action may be commenced within a specified time.”  Sorensen v. Overland Corp., 142 F. Supp. 354, 362 (D. Del. 1956), aff’d, 242 F.2d 70 (3d Cir. 1957).  As to the scope of tolling, Sorenson held that it did not reach cases not originally filed in a Delaware court (state or federal):

The argument made to embrace all courts within a state − that the theory of [the statute] mitigates against the harshness of the statute of limitation and thereby requires a liberality of approach − does not encompass prior actions arising out of foreign courts, state or federal.  Where a difference is one of kind and not degree, liberality of construction is not an absolute tool.  The Delaware statute from its plain meaning leads me to believe its provisions were not intended to cover actions commenced beyond the boundaries of the state.  I find therefore, under §8117 the bar of limitation is not avoided by another action failing other than upon the merits in another jurisdiction between the same parties on the same cause of action.

Id. at 363 (footnote omitted) (emphasis added).  See Salsburg v. Pioneer Gen-E-Motor Corp., 1962 WL 69576, at *2 (Del. Ch. June 13, 1962) (“It has generally been held under similar savings statutes that they are not applicable in cases where the original action is brought in a foreign jurisdiction.”).

That this statute applies to actions originally brought in Delaware federal court was confirmed in Howmet Corp. v. City of Wilmington, 285 A.2d 423, 426 (Del. Super. 1971)

This is not a situation where the first action was intentionally brought in the wrong court. . . .  As a result, the error in bringing the action in the Federal District Court for the District of Delaware, which lacked jurisdiction, did not prevent the action from being “duly commenced.”

Id. at 426.  Another relevant Delaware case is an exception that distinguished Sorenson and Howmet and allowed tolling where an action had originally been filed in Pennsylvania “in the belief that [an automobile] accident occurred in Pennsylvania” when in fact “the accident occurred in Delaware.”  Leavy v. Saunders, 319 A.2d 44, 45 (Del. Super. 1974).  The accident had occurred on I-95 at the Pennsylvania-Delaware border.  Id.  Because the plaintiff’s attorney “apparently in good faith believed that the accident occurred in Pennsylvania,” id. at 48, the court cut the plaintiff a break under the Delaware tolling statute and allowed refiling.

Get to the point.  Why should anybody care about this obscure legal issue?

Here’s the reason:  personal jurisdiction under Daimler AG v. Bauman, 571 U.S. 117 (2014), and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

Because of Bauman and BMS, lots of litigation tourists – whose lawsuits are, as Howmet put it, “intentionally brought in the wrong court” – will be finding themselves out of court on jurisdictional grounds.  More of our clients are incorporated, and are thus “at home,” in Delaware than in any other state.  Litigation tourists that Bauman/BMS will be putting out of the courts in which they erroneously filed will probably be looking to refile somewhere else, and will often have to assert one of these tolling statutes to avoid the statute of limitations in the new courts where they file.  While such jurisdictionally-driven refilings could occur in any state, Delaware is a particularly likely forum.

Interpreting state tolling statutes – as Delaware has – not to apply to actions initially (and deliberately) misfiled in other states by litigation tourists can be another powerful deterrent to litigation tourism.

Right now, the law we cited above means that all the litigation tourists who filed actions against Delaware corporations in California, Missouri, or Illinois, can’t refile in Delaware.  Maybe they can refile in their home states, where they should have filed in the first place, but only if their home states’ tolling statutes apply (or are interpreted to apply) to dismissed actions that were deliberately filed in an incorrect forum.

Unless a particular state’s tolling statute specifically provides for extraterritorial application, defense counsel should argue – vociferously – against such an interpretation.  A litigation tourist who deliberately filed in an erroneous jurisdiction, seeking some sort of tactical advantage, is not the sort of innocent victim of some non-merits circumstance that such statutes were intended to help.

Going forward, interpretation of tolling statutes to preclude extraterritorial effect could serve as a powerful disincentive to still more litigation tourism.  A Delaware-style interpretation removes the net from any plaintiff considering a stroll on the tightrope of litigation tourism.  Such plaintiffs would find themselves in the same position as litigation tourists who currently reside in Alabama, Florida, Hawai’i, North Dakota, South Carolina and South Dakota – not having any home-state tolling to fall back on in the event of a personal jurisdictional misadventure.

Needless to say, we would also look favorably on efforts to amend tolling statutes to provide expressly that they do not extend any benefit to litigation tourists.

In any event, defense counsel who succeed in defeating litigation tourist plaintiffs should be ready to examine tolling statutes for extraterritorial effect whenever such plaintiffs refile.  Those plaintiffs’ deliberately bringing their actions initially in an incorrect state may mean they are barred even by their home state’s statute of limitations, depending on how the relevant tolling statute applies.

Today’s guest post was is a group effort of Betsy Chance, Diana Comes, and Mac Plosser, all at the Butler Snow firm.  A little while ago they circulated (we don’t remember exactly how) an earlier version of a 50-state survey they had put together on state tolling statutes that preserve lawsuits that have been dismissed for non-merits reasons.  We had encountered this type of tolling before, in mass tort litigation – to see more, particularly involving personal jurisdiction dismissals – so it was of interest to us.  After reading it, we asked our colleagues if we could post the survey as a guest blogpost.  They agreed, and here is the result.  As always, our guest bloggers are 100% responsible for the content of their posts, and deserve all the credit (and any blame) for what follows.


Many jurisdictions have “savings statutes” that are designed to provide a window of opportunity for a plaintiff to re-file a claim that was dismissed for non-merits reasons even if the statute of limitations has run.  Such savings provisions vary widely:  from no provision at all to saving claims where process has never been served to saving claims that were voluntarily dismissed.  The time limits to “save” a claim are also disparate and range from 30 days to three years. Following is a summary of all 50 states’ approaches to savings statutes, providing the statutory basis for such savings statutes along with other helpful information.

No savings statutes:  Alabama, Florida, Hawaii, North Dakota, South Carolina, and South Dakota

Six states have no mechanism for preserving claims following a dismissal without prejudice.  See Burt v. State, 149 So.3d 1110, 1113 n. 5 (Ala. Crim. App. 2013) (“Alabama does not have a general savings statute or a constitutional savings clause.”); HCA Health Serv. v. Hillman, 906 So.2d 1094, 1098 (Fla. App. 2004) (“Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose case has been dismissed otherwise than on the merits to pursue the action even though the statute of limitations has run.”); Eto v. Muranaka, 57 P.3d 413, 427 (Haw. 2002) (“There is no savings statute in Hawai’i.”); Reid v. Cuprum SA, de C.U., 611 N.W.2d 187, 190 (N.D. 2000); Rink v. Richland Mem. Hosp., 422 S.E.2d 747, 749 (S.C. 1992); Peterson v. Hohm, 607 N.W, 2d 8, 13 (S.D. 2000).

Very limited-scope savings statutes: Michigan, Vermont, and Wisconsin

Michigan does not have a general savings statute, and has a limited savings statute of two years only for wrongful death claims where the claimant dies before the limitations period expired or within 30 days of the expiration.  Mich. Comp. Laws § 600.5852. Vermont’s only savings statute applies to claims or criminal prosecutions based on repealed statutory provisions.  See 1 Vt. Stat. Ann. §214(b).   Wisconsin’s only savings statute concerns the viability of pending actions after repeal of a statute. Wis. Stat. § 990.04.

Less than 6 months: Colorado, Kentucky, Nevada, Oregon, and Texas

Five states have more general savings statutes, but significantly limit the window within which to re-file an action per statute.  Colo. Rev. Stat. § 13-80-111 (90 days to re-file an action that was dismissed for lack of jurisdiction or venue, including actions first filed in federal court and recommenced in state court); Ky. Rev. Stat. Ann. § 413.270 (a dismissed action may be re-filed within 90 days of dismissal based on jurisdiction or venue); Nev. Rev. Stat. Ann. § 11.500 (a dismissed claim may be re-filed within the original limitations period or 90 days, whichever is later, only if it is dismissed for lack of subject matter jurisdiction); Or. Rev. Stat. § 12.220 (60 day period for re-filing an action that “is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action” or dismissed for failure to properly effect service and the limitations period has expired); Tex. Civ. Prac. & Rem. Code § 16.064 (plaintiff may re-file a dismissed action within 60 days of dismissal if the action is dismissed for lack of jurisdiction).

Six months:  Arizona, Georgia, Iowa, Kansas, Maine, New Mexico, and New York

These seven states have six month general savings statutes with varying conditions.  Ariz. Rev. Stat. Ann. § 12-504(A) (six months to re-file a dismissed claim, but the savings statute is discretionary, and plaintiff must establish entitlement to the statutory provision if the claim is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution (see Jepson v. New, 792 P.2d 728, 734 (Ariz. 1990)); Ga. Code Ann. § 9-2-61 (six month savings period to re-file a claim that “the plaintiff discontinues or dismisses”); Iowa Code § 614.10 (six months to re-file a non-merits dismissal, provided the case is not voluntarily dismissed by plaintiff or dismissed for lack of prosecution); Kan. Stat. Ann. § 60-518 (action may be re-filed within 6 months if there is a non-merits dismissal of the claim after the statute of limitations has otherwise expired); 14 Me. Rev. Stat. § 855 (savings clause for cases “defeated for any matter of form” or the death of a party, which can be re-filed within six months); N.M. Stat. Ann. § 37-1-14 (a claim may be re-filed in six months if it was dismissed for any non-merits reason other than failure to prosecute); N.Y.C.P.L.R. § 205 (a claim may be re-filed within six months, unless it is voluntarily dismissed by the plaintiff, for failure to prosecute, for lack of personal jurisdiction over the defendant, or is a claim that is dismissed on the merits).

One year – significant preconditions:  Arkansas, California, Connecticut, Delaware, Idaho, Massachusetts, Minnesota, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, and West Virginia

Many states have one year savings statutes containing various legislatively and/or judicially imposed limitations or conditions.  See Ark. Code Ann. § 16-56-126(a) (before a plaintiff can take advantage of the one year savings provision, he or she must serve process of the first action, and may only re-file where the limitations period expires between the initial filing and the non-merits dismissal); Del. Code Ann. tit. 10 § 8118 (six circumstances where claims are saved and can be re-filed within one year of a non-merits dismissal, none of which include voluntary withdrawal); Idaho Code § 5-233 (re-filing within one year only when a judgment for plaintiff is reversed on appeal); Mass. Gen. Laws ch. 260, § 32 (one year time period to re-file actions dismissed only for “a matter of form”); Minn. Stat. § 541.18 (one year to re-file a claim that is dismissed for non-merits reasons, including jurisdictional issues, but the plaintiff must establish that the defendant received timely notice of the claim); Mont. Code Ann. § 27-2-407 (one year window to re-file a claim dismissed for non-merits reasons and other than a plaintiff’s voluntary dismissal or failure to prosecute); N.J. Stat. Ann. § 2A:14-28 (one year to re-file a claim where a judgment that was rendered for plaintiff is reversed on appeal or dismissed on post-judgment motion by the court); N.C. Gen. Stat. § 1A-1 (Rule 41A voluntarily dismissed claim may be re-filed within one year of dismissal; no revival of merits-based dismissals, failure to prosecute, or failure to comply with orders of the court; court may specify a shorter period for re-filing); Ohio Rev. Code Ann. § 2305.1 (one year time period to re-file a claim that “fails otherwise than upon the merits” when the limitations period expires during the pendency of the first suit); 12 Okla. Stat. § 100 (plaintiff may re-file a claim dismissed for non-merits reasons within one year of the dismissal, so long as the action is commenced within Oklahoma); 42 Pa. Cons. Stat. § 5535 (terminated actions may be re-filed within a year; excluding personal injury or wrongful death claims, claims that are voluntarily dismissed by plaintiff, dismissed for failure to prosecute or dismissed on the merits); R.I. Gen. Laws § 9-1-22 (action may be re-filed within one year of a non-merits dismissal, provided the dismissal is not voluntary by the plaintiff or for failure to prosecute); W. Va. Code R.§ 55-2-18 (plaintiff may re-file a dismissed action within one year of dismissal if the action was involuntarily dismissed for a non-merits reason but does not apply to voluntary dismissals by the plaintiff or to dismissals based on plaintiff’s negligence).

California’s one-year savings provision is unique in that it provides a one year window to re-file if a judgment for plaintiff is “reversed on appeal other than on the merits.”  Cal. Code Civ. Proc. § 355.  It was extended by case law to a claim that is voluntarily dismissed, but only if three factors are met: “(1) the trial court erroneously granted the initial nonsuit; (2) dilatory tactics on the part of the defendant ‘prevented disposition of the first action in time to permit a second filing within the [limitations period]’; and (3) the plaintiff had at all times proceeded in a diligent manner.”  Dimcheff v. Bay Valley Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004) (quoting Wood v. Elling Corp., 572 P.2d 755, 760 (Cal. 1977)).

Connecticut has two separate savings statutes. One allows the re-filing of claims dismissed for a non-merits failure of the suit within one year, Conn. Gen. Stat. § 52-592 (six months if claim is against executor); the second allows a one year period to re-file if the original suit named the wrong defendant.  Conn. Gen. Stat. § 52-593.  An original action is deemed “commenced” for purposes of the savings statute when the defendant has effective notice of the action within the one year savings time.  Rocco v. Garrison, 848 A.2d 352, 359 (Conn. 2004).

One year – few preconditions:  Alaska, Illinois, Mississippi, Missouri, New Hampshire, Tennessee, Utah, and Wyoming

Another eight states allow one year for a plaintiff to refile an action, although the claims covered vary, for a one year time frame without condition.  See Alaska Stat. § 09.10.240 (a plaintiff “may commence a new action upon the cause of action within one year of the dismissal or reversal on appeal”); Miss. Code Ann. § 15-1-69 (re-filing within a year if a case is dismissed for a “matter of form,” which has been held to include voluntary dismissal in federal court); Mo. Rev. Stat. § 516.230 (an action dismissed without prejudice may be re-filed “from time to time” within one year); N.H. Rev. Stat. Ann. § 508:10 (an action may be re-filed within one year of any dismissal that does not bar the right of action); Tenn. Code Ann. § 28-1-105 (one year to re-file an action that is dismissed for reasons “not concluding the plaintiff’s right of action”); Utah Code Ann. § 78B-2-111 (plaintiff may re-file a claim once within one year of dismissal other than on the merits); Wyo. Stat. Ann. § 1-3-118 (new action allowed for one year after reversal of judgment or non-merits dismissal).

Illinois has a peculiar situation.  A 1995 amendment to 735 Ill. Comp. Stat. 5/13-217 that would have added significant preconditions was a non-severable part of a legislative package struck down as unconstitutional for other reasons in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997).  Thus, the pre-1995 version of § 5/13-217, controls, which allows for voluntary dismissals and dismissals for want of prosecution or other procedural reasons to be re-filed within one year or within the original limitation period, whichever is greater without the other conditions added in 1995.  See Hudson v. City of Chicago, 889 N.E.2d 210, 214 n.1 (Ill. 2008).

Three years:  Indiana

By far the most generous savings statute is Indiana’s, which allows three years to re-file an action.  Ind. Code § 34-11-8-1.  The only consolation is that the statute does not apply if the action is dismissed for want of prosecution or voluntarily dismissed by plaintiff.  Ind. Code § 34-11-8-1(a)(1); Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987).

Miscellaneous:  Louisiana, Maryland, Nebraska, Virginia, and Washington

The remaining states have unique savings provisions that resist categorization. While not a savings statute per se, Louisiana provides that the statute of limitations is tolled (“interruption of prescription”) when a suit is filed, and that tolling continues during the pendency of the case.  La. Civ. Code Ann. art. 3463.  However, such “interruption” is deemed not to have occurred if the plaintiff abandons, voluntarily dismisses or fails to prosecute her claim.  “The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption.”  Cichirillo v. Avondale Indus., 917 So. 2d 424, 430 (La. 2005).

Maryland does not have a general savings statute, but has two separate savings provisions operating in specific types of actions.  Md. Code Ann. Cts. & Jud. Proc. § 5-119 (60 days to re-file a medical malpractice claim when it was dismissed for “failure to file a report in accordance with § 3-2A-04(b)(3) of this article” (i.e., a certificate of a qualified expert) and does not apply to voluntary dismissals by the plaintiff); Md. Rule 2-101 (30 days to re-file in state court if action was dismissed in federal court for want of jurisdiction or under a limitations period under federal law).  In Virginia, a plaintiff may re-file an action within one year of a reversal of a judgment for plaintiff that does not preclude a new cause of action.  Va. Code Ann. § 8.01-229(E).  If a plaintiff voluntarily dismisses her claim, a new action may be brought within 6 months of the dismissal, or within the original statute of limitation, whichever is longer. Id. The savings statute applies whether the original action was filed first in federal court and then in state court or vice versa.  Blakely v. Austin-Weston, 348 F. Supp.2d 673, fn 4 (E.D. Va. 2004).

Nebraska and Washington provide a limited mechanism by which a plaintiff’s claim can survive in the event the statutory basis underlying those claims is amended or repealed.  See Neb. Rev. Stat. § 49-301 (addressing the viability of claims that are pending at the time the statutory basis for the claims is repealed); Wash. Rev. Code § 10.02.040 (providing that a savings period applies to preserve claims arising under a statutory framework even if the statute is subsequently amended or repealed). These states have no general tolling.

Because of the wide range of rules and limitations among the states, it is crucial that the relevant statutory and common law provisions applicable to voluntary or non-merits-based dismissals be examined in order to assess the propriety of any re-filed claim or the finality of any dismissal without prejudice.


We’ve always been against the concept of class action tolling:  that merely by filing a class action – the class action does not have to have any merit – a class action lawyer magically stops the running of the statute of limitations for everybody in the class.  To us, this gives Fed. R. Civ. P. 23 a substantive effect, which violates the Rules Enabling Act (you can read more about that, here, and here, in other contexts).  It also confers an automatic one-way benefit on putative class members, although in other circumstances the class action lawyers perpetrating this sleight of hand will cheerfully tell courts that “no class exists before certification.”

The Supreme Court first allowed class action tolling in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), an antitrust case, ostensibly to “further[] the purposes of litigative efficiency and economy,” so that no “protective litigation” (by plaintiffs fearing their own claims would be time barred) would clog up the federal courts.  Id. at 553-54.  The impact on defendants would be minimal, suggested the majority, because “[d]uring the pendency of the [certification] determination . . ., which is to be made ‘as soon as practicable after the commencement of an action,’ potential class members are mere passive beneficiaries.”  Id. at 552 (quoting former Rule 23(c)(1)).

We had hopes that this rule, being “specifically grounded in policies of judicial administration,” Smith v. Bayer Corp., 564 U.S. 299, 314 n.10 (2011), would be abolished after its encouragement of inequitable gamesmanship became clear, and once other, less prejudicial methods of judicial administration to address protective filings – such as the inactive dockets widely used in asbestos litigation – were invented.  However, the Court dodged abolition in California Public Employees’ Retirement System v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017), holding only that American Pipe did not apply to statutes of repose . Id. at 2052-53.  The Court did, however, point out that concern about protective filings was much “overstated.”  Id. at 2054 (“courts, furthermore, have ample means and methods to administer their dockets and to ensure that any additional filings proceed in an orderly fashion”).

In any event, all of the Supreme Court’s class action tolling cases, American Pipe, supra, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), and Chardon v. Soto, 462 U.S. 650 (1983), involved successive suits in the same jurisdiction – federal-question cases brought in federal court.  So-called “cross-jurisdictional” class action tolling, is much worse, and has intruded at times directly into our sandbox (although thankfully, class action have largely gone extinct in personal injury cases).  As we said in an earlier post:

“Cross-jurisdictional” tolling, on the other hand, refers to allowing a failed class action filed in jurisdiction “A” to toll the statute of limitations on an individual action later filed by a putative class member in jurisdiction “B.”  In a lot of cases that means a state court action filed after a failed federal court class action.  In other cases it means filing an individual action in one state after class certification is denied in a different state.  In either case, the policy of avoidance of protective filings doesn’t work.  In fact, the opposite is true.  A liberal tolling rule only invites more suits to be filed in the jurisdiction that has it.  Thus, even on its own terms, cross-jurisdictional tolling based upon meritless class actions doesn’t make sense.

Thus, going back to the Bone Screw litigation, we have vehemently criticized cross-jurisdictional class action tolling.  Back then plaintiffs asserted that statutes of limitations all over the country were tolled by a baseless class action, In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 273597 (E.D. Pa. Feb. 22, 1995), in which certification was denied and no appeal even attempted.  Even this relatively quick adjudication took almost 14 months (from 12/30/93, when the class action was filed until denial of certification on 2/22/95).  We litigated cross-jurisdictional tolling to favorable results in Maestas v. Sofamor Danek Group, 33 S.W.3d 805, 808-09 (Tenn. 2000), and Wade v. Danek Medical, Inc., 182 F.3d 281, 287-88 (4th Cir. 1999), while also appearing as amicus curiae in Portwood v. Ford Motor Co., 701 N.E.2d 1102, 1104 (Ill. 1998).  Given that cross-jurisdictional class action tolling inherently involves litigation in one state attempting to toll the statute of limitations in another state, this issue can also be framed as one implicating states-rights, and where one of the courts is federal, federalism.

Over time most states have recoiled from cross-jurisdictional class action tolling.  Largely because of our Bone Screw experience, we maintain a scorecard on the issue.  According to our list, 35 jurisdictions (Alabama, Alaska, Arizona, Arkansas, California, Colorado, DC, Florida, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming) reject cross-jurisdictional class action tolling; one state (Michigan) allows it where the original class was certified; and six or seven states (Delaware, Hawaii, Montana, New Jersey, Ohio, West Virginia, and maybe Connecticut) allow tolling even for meritless, out-of-state class actions.  We do not credit a couple of LIBOR decisions in which that court blatantly ignored state law.

One of the states that does recognize cross-jurisdictional class action tolling is Delaware.  See Blanco v. AMVAC Chemical Corp., 67 A.3d 392, 398-398 (Del. 2013).  A recent Delaware Supreme Court decision throws into sharp relief why such tolling is a bad idea, and offensive not only to the statute of limitations, but also to the very judicial efficiency considerations that such tolling purports to further.  See Marquinez v. Dow Chemical Co., ___ A.3d ___, 2018 WL 1324178 (Del. March 15, 2018).  Marquinez is a poster child for delay – the very sort of stale and desultory litigation that is why statutes of limitations exist in the first place.  “The plaintiff-appellants (“the plaintiffs”) worked on banana plantations in Costa Rica, Ecuador and Panama at various times in the 1970s and 1980s.”  The first purported class action wasn’t filed until 1993, in Texas.  Marquinez, 2018 WL 1324178, at *2.  Then the following things happened:

  • Removal to federal court on the basis of the Foreign Sovereign Immunities Act (one defendant was owned by a foreign government).
  • MDL consolidation in federal court.
  • Dismissal on forum non conveniens in 1995, with a “return jurisdiction” caveat – if any foreign country ruled no jurisdiction, then plaintiffs could come back to Texas.
  • The forum non conveniens ruling denied as moot all pending motions, including class certification.

Id. at *1-2.  That’s two years of post-litigation delay – between 1993 and 1995 class certification was never ruled upon.  Don’t forget that the “1970s and 1980s” claims were already at least 13 years old before the initial suit was filed.

Plaintiffs really didn’t want to be in federal court – a sure sign of substantively weak litigation.  They appealed the exercise of Foreign Sovereign Immunities jurisdiction all the way to the United States Supreme Court.  Id. at *2.  that appeal took until 2001.  Id.   Then the plaintiffs, accompanied by their lawyers, reluctantly went home.  “[T]hey were unable to prosecute their claims in other countries” so they returned to Texas, where they sought to resurrect their claims under the “return jurisdiction” caveat.  Id.  While that was going on, the Supreme Court rejected Foreign Sovereign Immunities jurisdiction in another case involving identical litigation in another state.  See Dole Food Co. v. Patrickson, 538 U.S. 468 (2003).

So in 2003 – ten years after the original class action was filed, and between 23 and 33 years after the actual events claimed in the suit, the case was remanded to Texas state court.  Then the following things happened:

  • Defendants sought to have the case thrown out due to plaintiffs’ failure to comply with prerequisites to their exercise of “return jurisdiction” rights.
  • The “return jurisdiction” provision, along with the entire forum non conveniens ruling, was declared void for want of subject matter jurisdiction.
  • Plaintiffs again moved for class certification, this time under Texas state law.
  • Defendants removed to federal court a second time, under CAFA.
  • CAFA removal failed because the litigation pre-dated CAFA.

Marquinez, 2018 WL 1324178, at *2-3.  Finally, “[o]n June 3, 2010, class certification was denied in Texas state court.” Id. at *3.

At this point plaintiffs had had enough of Texas.  They started creating satellite litigation.  In mid 2011 one plaintiff filed an individual action in Delaware state court and others filed a class action in federal court in Louisiana.  Id.

Finally, less than a week before two years elapsed after the Texas denial of class certification – on May 31, and June 2, 2012 – two new class actions were filed in Delaware federal court.  Id.


Plaintiffs had screwed up, or so it appeared.  The identical suit being already pending for a year in Louisiana, the Delaware federal court dismissed the Delaware action under the “first filed rule.”  Id.  That was appealed, and eventually reversed by the Third Circuit sitting en banc.  See Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016) (en banc).

While that was going on, the remaining plaintiffs (those not already litigating in Louisiana (after fleeing Texas)) were dismissed on the statute of limitations.  The District Court in Delaware “h[e]ld[] that class action tolling stopped in July 1995 when [the original court] dismissed the case for forum non conveniens.”  Id. That was in 2014.  Those plaintiffs appealed.  The Third Circuit punted the matter, on certification, to the Delaware Supreme Court.

As in Blanco, the Delaware Supreme Court seemed unduly frightened by the prospect of “placeholder” suits:

If members of a putative class cannot rely on the class action tolling exception to toll the statute of limitations, they will be forced to file “placeholder” lawsuits to preserve their claims. This would result in wasteful and duplicative litigation.

Marquinez, 2018 WL 1324178, at *4 (quoting Blanco, 67 A.3d at 395).

Did the court not look at its own description of this litigation’s ridiculously long procedural history?  Between 1993 when the action was first filed, and denial of class certification in mid-2010 not a single “placeholder” suit was filed in Delaware state or federal court.  That was despite plaintiffs’ extended lack of success in advancing the litigation.

Although nowhere mentioned in Marquinez, the Delaware statute of limitations for tort cases is two years.  10 Del. C. §8119.  Making a mockery of that legislative judgment, Marquinez held that the pendency of a meritless class action can toll the statute of limitations for many multiples of that two-year period – here 17 years, or 8½ times the statutory period – because a “clear and unambiguous” rule is necessary:

[A] clear and unambiguous rule avoids uncertainty over the starting and ending dates for statutes of limitation in cross-jurisdictional class action tolling cases.  Thus, we adopt a rule that furthers the certainty interest − cross-jurisdictional class action tolling ends only when a sister trial court has clearly, unambiguously, and finally denied class action status.

Marquinez, 2018 WL 1324178, at *5.

The mind boggles.  Seventeen years hardly corresponds to the assumption in American Pipe that class certification will be decided “as soon as practicable after the commencement of an action,” and indeed those words don’t even appear in Rule 23 any longer.  Justice Stewart, who wrote American Pipe, would no doubt be appalled.  Seventeen years is more than half the time of Justice Stewart’s tenure on the Supreme Court.

The Delaware statute itself imposed a “clear and unambiguous” rule – two years.  Is the Delaware Supreme Court going to abolish the discovery rule, fraudulent concealment and all the other factbound doctrines that toll the statute of limitations in certain situations, and thus have created uncertainty?  Defendants argue for “clear and unambiguous” rules all the time (e.g., product identification, affirmative prescriber warning causation testimony, relative risk of two).  Why here, in a situation that is certain to make Delaware the dumping ground for Latin American toxic tort litigation.

And is this rule even “clear and unambiguous”?  The Texas plaintiffs never appealed the 2010 class certification denial.  What if they had?  Does “sister trial court” then morph into an further need for certainty, tolling the statute of limitations until the first state’s denial has been “clearly, unambiguously, and finally” been affirmed on appeal?

Marquinez demonstrates why courts should never start down the slippery slope of cross-jurisdictional class action tolling.  Right after proclaiming its “clear and unambiguous” rule, the decision plunges into the minutiae of the Texas litigation, spending seven paragraphs parsing through what the Texas court’s “return jurisdiction” language – in an order void for lack of subject matter jurisdiction – must have meant.  Marquinez, 2018 WL 1324178, at *6-7.  In so doing Marquinez ended up disagreeing with two other courts also forced into that exercise by plaintiffs’ satellite litigation.  Id. at *8-9 (“respectfully disagree[ing] with the Fifth Circuit’s and the Hawai’i Supreme Court’s application of class action tolling”).  If Delaware had rejected cross-jurisdictional class action tolling in the first place, none of that Talmudic exercise would have been necessary.

Judicial efficiency is hardly furthered by forcing the courts of one state to comb through the proceedings of litigation filed elsewhere in an effort to figure out when exactly plaintiffs should not be required to rely on an arguably meritless class action filing for fear that it won’t be certified.  As Marquinez demonstrates, that exercise itself can lead to disparate results.  And now what happens?  The litigants get to engage in the costly, and probably impossible, task of piecing together what happened in the forests and fields of Latin America 40-some years ago when Nixon was president and we though Watergate was as bad as things could get.  There are some cases where no litigation is the correct answer.  If the courts of these plaintiffs’ home countries weren’t willing to entertain this litigation, there is no good reason for Delaware, or any other state, to become the dumping ground for the Third World’s unwanted lawsuits.  Like Justice Stewart, we know a bad result when we see it.

Maybe it doesn’t matter.  Maybe, between Bauman and BMS, would-be non-resident class-action plaintiffs won’t be able obtain personal jurisdiction to file the same lawsuit over and over again in different jurisdictions (here, at least Texas, Louisiana, and Hawai’i before Delaware).  Maybe courts will resort to forum non conveniens to throw these Latin American cases out for good.  See Aranada v. Philip Morris, USA, Inc., ___ A.3d ___, 2018 WL 1415215 (Del. March 22, 2018) (similar overseas chemical exposure case pitched for inconvenience, even though another forum not available).  Maybe the Supreme Court will again re-examine American Pipe, and at least do away with piling meritless class actions on top of other meritless class actions.

But conversely, Bauman and BMS also mean that Delaware, as the “home” of many large corporations, will be assuming outsized importance in the litigation landscape.  Delaware courts are going to have enough to do without being required to sift through the detritus of other jurisdictions’ failed class action litigation.

Finally, there’s a message here for any other jurisdiction considering cross-jurisdictional class action tolling – don’t go there.  Don’t go anywhere near there.



Most of the time we do not linger on cases that turn on the statute of limitations.  They are often fact-specific to the point of dreariness.  In addition, from a doctrinal perspective, there isn’t much new under the Sun when it comes to a SOL analysis.  But the SOL discussion in Hendrix v. Novartis Pharmaceutical Corp., 2013 U.S. Dist. LEXIS 14936 (C.D. Cal. Oct. 2, 2013), is so comprehensive and cogent that it merits a look, a post, and a new entry on our cross-jurisdictional tolling scorecard.

Hendrix is yet another Aredia-Zometa case.  As we said last week, we are becoming a scrivener for the ongoing A-Z saga.  As with all A-Z cases, the plaintiff ingested Aredia or Zometa as part of cancer treatment and claimed to have suffered osteonecrosis of the jaw (ONJ) as a result.  Also, because there is an A-Z MDL, the filing/forum  history of the case is something of an adventure.  The plaintiff filed his Complaint in the Eastern District of New York on January 17, 2006.  The case was consolidated in 2007 into the MDL in the Middle District of Tennessee.  The defendant filed its SOL motion, but before it could be heard by the MDL court, the case was remanded back to EDNY.  Then the parties moved to transfer the case to C.D. Cal.  If the case could acquire frequent flyer miles, it would have earned enough to … ah, who are we kidding?  With all the restrictions on frequent flyer awards, the case wouldn’t be able to get a free flight anywhere.  It wouldn’t even get free WiFi or a do-it-yourself Bloody Mary.

It makes sense for Hendrix to end up in C.D. Cal., because the treatment and alleged injury took place in California and California law applies.  Under California law, personal injury actions are subject to a two year limitation.  Thus, the issue is whether the cause of action accrued before January 17, 2004.  If it did, the SOL means that the plaintiff is SOL.  To avoid that result, the plaintiff assembled the usual suspects when it comes to SOL:  (1) the defendant waited too long to raise the issue (almost as if there is an SOL to SOL defenses); (2) the “discovery” rules saves the day for the plaintiff; (3) cross-jurisdictional tolling saves the day, because somebody somewhere filed a baseless class action that somehow made everybody else freeze up; and (4) equitable tolling is necessary, because … because it would be “equitable.” Let’s face it, the word “equitable” too often is the last refuge for litigants with shoddy arguments.  We are happy to report that none of those arguments worked. Continue Reading Discovery Rule, Cross-Jurisdictional Tolling, and “Equitable” Tolling Cannot Save Aredia-Zometa Case

We appreciate being on Joe Hollingsworth’s mailing list – we really do.  Much of the Aredia/Zometa stuff he sends us is manifestly blogworthy.  That, and all things being equal, we’d rather discuss a defense win than a defense loss.  Joe doesn’t send us his bad ones (although certain plaintiff lawyers do pass them along to us).

But not all bloggable decisions are created equal.  It’s one thing to get summary judgment on warning causation because the prescribing doctor wouldn’t have done anything differently, or because the plaintiff’s experts’ opinions were thrown out.  It’s another thing entirely to win on an issue of law that will impact many cases far into the indefinite future.  We appreciate what Joe’s trying to do here – “win” a mass tort on the remand side of an MDL − because we’ve been there and done that, and it isn’t easy.

Mass torts post-MDL remand are like fighting zombies in the movies.  The other side has hundreds of plaintiffs, and the defense has to find ways to eliminate enough of the zombies to reduce the assault to something that eventually can be settled for a reasonable sum.  In Bone Screw that required a summary judgment record of 182-2 (and an equally good record on appeal).  In such a fight, decisions that move the generally applicable law in the defense direction are at a premium.  Not only can they dispatch bunches of zombies at the same time, but they build barriers to entry of new plaintiffs, and raise obstacles to litigation generally, thus hitting the other side where it hurts the most – in the litigation pipeline.

Patterson v. Novartis Pharmaceuticals, Inc., ___ F. Supp.2d ___, 2012 WL 6618397, slip op. (D.R.I. Dec. 19, 2012), is one of the really good ones.  The plaintiff, a Massachusetts resident, decided to bring suit for some reason in D.C. federal court, on the basis of diversity of citizenship.  That action
was swept into the Aredia-Zometa MDL, dismissed under TwIqbal, and the dismissal affirmed by the Sixth Circuit.  See Patterson v. Novartis Pharmaceuticals Corp., 451 Fed. Appx. 495 (6th Cir. 2011).  But even dismissal with prejudice couldn’t stop this plaintiff.  Like a zombie looking for life after death, plaintiff filed yet another action, this time in the District of Rhode Island.

The second action, however, was barred by the relevant (Massachusetts) statute of limitations.  First, the court held that the TwIqbal dismissal was a decision on the merits so that a Massachusetts tolling statute could not resurrect the zombie claims.  Patterson, 2012 WL 6618397, at *2-3.  OK, but we’re not all that interested in state-specific statute of limitations decisions.  So we move on.

Then (from our perspective) Patterson really gets interesting.  The plaintiff alleged that a bogus Aredia-Zometa class action, filed in Tennessee and never certified (see In re Aredia & Zometa Products Liability Litigation, 2007 WL 3012972 (M.D. Tenn. Oct. 10, 2007)) tolled the Massachusetts statute of limitations for several critical years despite the class action being meritless.  That raised one of the blog’s (numerous) pet peeves – cross-jurisdictional class-action tolling.  The plaintiff claimed that, although no Massachusetts court had ever actually so held, it was a “virtual certainty” that Massachusetts would recognize this doctrine.  Patterson, 2012 WL 6618397, at *4.

Patterson flatly rejected cross-jurisdictional class-action tolling. It found no basis for predicting that Massachusetts would recognize this
“controversial” concept:

The Massachusetts Supreme Judicial court has not addressed the issue of cross-jurisdictional class-action tolling. . . .  [It] is a somewhat controversial theory.  The jurisprudence [on cross-jurisdictional tolling] is not yet thoroughly developed.  The majority of states have not yet had occasion to address the issue directly and the states that have considered cross-jurisdictional tolling have been split in their acceptance of the doctrine and the rationale for their decisions. . . .  One federal court has declined to import the doctrine of cross-jurisdictional tolling into Massachusetts law in the absence of authority that establishes that Massachusetts law recognizes such tolling.

Patterson, 2012 WL 6618397, at *5 (citations and quotation marks omitted).

But the court in Patterson doesn’t content itself with merely holding that there was no basis for predicting that Massachusetts would adopt an outré theory such as cross-jurisdictional class-action tolling.  To our great pleasure, the court went further and declared that plaintiff – having filed in federal rather than state court – shouldn’t even have advanced that kind of theory.  Federal courts, as this blog has pointed out time and time again, have no business predicting novel expansions of liability under state law.  That’s the province (although we hope they don’t) of state courts:

Plaintiffs, Massachusetts residents, chose to file this
complaint in Federal Court in Rhode Island instead of in Massachusetts state court.  Plaintiffs are . . .empowered to choose the court system and venue in which litigation will
proceed.  [They] were well aware that Massachusetts state law on tolling would play a crucial, if not decisive, role
in this matter.  Notwithstanding that important consideration, Plaintiffs chose a federal venue. . . .  [A] plaintiff should not choose a federal forum when it seeks to assert a novel state law theory.  We have warned, time and again, that litigants who reject a state forum in order to bring suit in federal court under diversity jurisdiction cannot expect that new trails will be blazed.  In effect Plaintiffs have asked the Court to stretch Massachusetts law to reach an unknown and unexplored frontier. . . .  Without a
well-plotted path showing an avenue of relief that the Massachusetts Supreme Judicial Court would take on cross-jurisdictional class-action tolling, and with no apparent consensus among the few states that have addressed the question, this Court declines Plaintiffs’ invitation and refuses to embark into an unexplored frontier and import cross-jurisdictional class-action tolling into Massachusetts state law.

Patterson, 2012 WL 6618397, at *5-6 (citations and quotation marks omitted).  This passage is simply one of the best statements of the principle of legal restraint under the Erie doctrine that we have ever come across.

Sharp-eyed readers of Patterson may note the citations to Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn. 2000). Patterson, 2012 WL 6618397, at *4, *5 n.8.  Maestas is a Bone Screw case – one of many. Twelve years after Maestas was decided, it remains among the leading, persuasive precedents nationwide against cross-jurisdictional class-action tolling.  Part of fighting off the mass tort zombies − that is, beating a mass tort on the remand side of the MDL − is the use of precedent as a weapon of mass destruction.  Bone Screw was won, in large part, because the other side realized that:  (1) their cases were really weak for many reasons, and (2) because of those weaknesses, our side was using them to establish favorable law that under stare decisis would help wipe out other hordes of zombies for decades to come (Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), being Exhibit A).  We’re pleased to see the same strategy being followed to good effect in Aredia/Zometa, and we wish Joe and his team much success in the coming years, especially on appeal.

The big developments – the Caronia opinion, and the Supreme Court’s grant of certiorari in Bartlett – along with other distractions, such as our ABA Blawg 100 award, have left us with a pile of unblogged stuff that we think is of interest to our readers.

Today we’re taking a crack at that pile.  We apologize in advance if these discussions aren’t as detailed (and thus aren’t as useful) as our usual posts.

California Leans Daubert

California has long gone its merry, idiosyncratic way in the Daubert/Frye wars.  The California Supreme Court has fashioned something called “Kelly/Leahy
after the names of the two most important opinions.  However, in Sargon Enterprises, Inc. v. University of Southern California, ___ P.3d ___, 2012 WL 5897314 (Cal. Nov. 26, 2012), the court spoke about California expert admissibility with a distinct Daubert accent.  Sargon (great name – it evokes space aliens, unknown elements, or even ancient Sumer) is a drug/medical device case only in the loosest sense.  It’s about an alleged “breach of a contract
for the [defendant] to clinically test a new implant the [plaintiff] had patented.”  Id. at *1.  The expert testimony at issue involved lost profits.  Id. at *2.  The testimony was vague and tautological, involving the expert’s supposition that the defendant, because it was “innovative,” would have joined the “big six” dental implant manufacturers.  But he measured “innovation” according to “the proof is in the pudding” – successful companies were “innovative,” less successful ones less so.  Why was the plaintiff company “innovative” even though it was small?  That opinion was a bunch of gobbledygook and jargon amounting to “because I think so.”  See Id. at *3-5.  The trial court threw the expert out.  The Court of Appeals reversed and found the testimony admissible, then the
California Supreme Court granted review.

This blog doesn’t care all that much about the ins and outs of calculating lost profits, but we do care about the standards for expert admissibility.  Sargon is
noteworthy for the court’s repeated reliance on the federal precedent that we have (usually) come to know and love, starting with “[u]nder California law,
trial courts have a substantial ‘gatekeeping’ responsibility.”  Sargon, 2012 WL 5897314, at *14 (footnote citing Joiner and Kuhmo Tire omitted).  That leads to “[e]xclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony.”  Id.

Continue Reading Stuff

If you make a habit of checking our Cross-Jurisdictional
Class Action Tolling scorecard on a daily basis, then you already know
that the Louisiana Supreme Court recently skewered cross-jurisdictional tolling.  They beat it with a red stick.  But let’s assume for a moment that you have a life.  So
blenderize a Hurricane, fry up some bacon-wrapped oysters, twirl a Who Dat
parasol, and enjoy the Cajun masterpiece that is Quinn v. Louisiana Citizens
Property Ins. Corp.
, 2012 La. NEXIS 2995 (La. Nov. 2, 2012).


For us, discussing  Louisiana case law is like trying a
new hot sauce – tasty and terrifying.  Louisiana law is really
different.  Redhibition, anyone?  It turns out that the peculiarity
of Louisiana law is what makes it easy for the Louisiana Supreme Court to hold
in the Quinn case that the Louisiana legislature did not intend to permit
cross-jurisdictional class action tolling.


Quinn is not a drug or device case.  It is not even a
product liability case.  Instead, the case involved insureds who brought a
state court action against their homeowner’s insurer to recover for alleged
underpayment of compensation for wind and water damage resulting from
Hurricanes Katrina and Rita.  The case would have been barred by the
statute of limitations, unless the plaintiffs could benefit from tolling (in
Louisiana talk, a “suspension of prescription”) by virtue of an earlier class
action that had been filed, and recently dismissed, in Louisiana federal court.


Before going through the Quinn analysis, let’s review the
bidding on cross-jurisdictional class action tolling:


Cross-jurisdiction tolling is a rule whereby a
court in one jurisdiction tolls the applicable statute of limitations based on
the filing of a class action in another jurisdiction.

We hate it.  The law should not reward the
filing of meritless class actions, and lawyers should not be able to game
statutes of limitations in other jurisdictions.

We hate it.


The plain words of the Louisiana tolling statute contain “no
express language limiting its effect to class actions filed only in Louisiana
state courts, ordinarily an indication that such a limitation was not
intended.”  Quinn, 2012 La. LEXIS 2995 at *19.  Okay, we admit it –
that scared us.  But we held our voodoo doll tight and took another bite out of
a beignet.  Surely this would turn out alright, right? 
 The Louisiana tolling statute refers to notice requirements that are
“unique to Louisiana.”  Id. at *21.  Thus, “[b]y tying the operative
provisions of La. C.C.P. art. 596 to unique aspects of Louisiana class action
procedure, the legislature has expressed an intent that suspension of
prescription under La. C.C.P. art. 596 can apply only to putative class actions
filed in Louisiana state courts.”  Id. at * 23.    The Louisiana
Supreme Court was not merely standing on ceremony.  Because the Louisiana
tolling statute triggered and stopped tolling periods based on unique
requirements of Louisiana law, application of cross-jurisdictional tolling
would effectively permit indefinite tolling.  Id. at *25.  That result would be,
of course, unfair, capricious, and insane – sort of like a Bourbon Street
bouncer at 2 a.m. 


The plaintiffs argued that federal courts sitting in
diversity should apply Louisiana state law on limitations and tolling. 
But that rule would be “absurd and patently unfair.”  Id. at *23 n.
12.  It would also contravene something every first year law student
learns – that the Erie doctrine requires federal courts sitting in diversity to
apply state substantive law and federal procedural law.  Id.


Finally, the Quinn court canvasses what other courts have
said about cross-jurisdictional tolling.  The courts that have accepted
cross-jurisdictional tolling did not involve anything like Louisiana’s unique
tolling provisions.  Moreover, the Quinn court agreed with the rationale
of the anti-cross-jurisdictional tolling courts, especially the concern about
forum-shopping, where opportunistic plaintiffs would file class actions in
states with the most generous tolling rules.   Id. at *31. 


Add Louisiana to the win column for cross-jurisdictional
tolling.   The opinion goes down smooth and easy, like a

Yeah, we know that Joe Hollingsworth − among his many other talents − likes to publicize his wins (who doesn’t, we plead guilty).  But that’s okay.  When he sends us stuff from the Aredia/Zometa wars that’s worth publicizing, we’ll use it; otherwise, we blog about something else.  It just so happens that the latest items we’ve been graced with are worth knowing about.

First, there’s what looks like the end of the line for the Hogan case.  We’ve been following that one for several years.  Hogan was particularly notable because it involved a Rhode Island plaintiff, and there’s just not that much Rhode Island law on anything.

Our prior Hogan-related posts:

First, the defendant lost a summary judgment motion in the MDL, In re Aredia & Zometa Products Liability Litigation, 2009 WL 2513555 (M.D. Tenn. Aug. 13, 2009), as we mentioned here, in the context of keeping score.  At that point, we thought that the Zyprexa defense folks were having better luck with their summary judgment motions than the A-Z folks.

Then things got better.  The next time we looked in, Hogan had evidently been remanded from the MDL, because a court in New York (the forum choices in A/Z often leave us scratching out heads) took a pro-defense position on subsequent remedial measures − finding them to be “procedural” and thus applying the federal rules (rather than a peculiarly pro-plaintiff Rhode Island state rule).  Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1336566 (E.D.N.Y. April 6, 2011).

We checked back in not much later for a truly excellent Daubert ruling − excluding the notorious Dr. Parisian and another plaintiff’s expert.  Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1533467 (E.D.N.Y. April 24, 2011).  Unfortunately the court also dodged a prediction of whether Rhode Island would adopt the learned intermediary rule.  Id. at *9.  That meant Hogan only received an honorable mention in our 2011 top ten list.

So fortified, the defense then went out and won the trial.  We blogged on that, too, even though verdicts don’t usually come with much to blog about, because at trial the court finally predicted − a first we believe − that Rhode Island would adopt the learned intermediary rule.  Rhode Island had previously been the only state in the country with no learned intermediary rule precedent at all.  We called it “The Closing of the Learned Intermediary Frontier.”

Well, now the defense has won the inevitable appeal in Hogan, too.  Here’s a copy of the opinion.  Did the plaintiff appeal the subsequent remedial measure ruling?  Doesn’t look like it.  Did the plaintiff appeal exclusion of Parisian?  Again, it’s not even mentioned in the opinion.  Finally, did the plaintiff appeal on the learned intermediary rule?  Nope.

With all these interesting legal issues in the Hogan case, what went up?

The only issue the Second Circuit discussed was whether the plaintiff’s screw up in failing to make timely arrangements to obtain the live testimony of one of the treaters.  Hogan, slip op. at 3-4.  After all that time and effort, what we’re left with is a discretionary procedural ruling.

Bravo Foxtrot Delta.

Thus endeth the Hogan litigation, with a whimper not a bang.

We get more bang for our blogging buck with the other recent A-Z opinion, Patterson v. Novartis, Inc., C.A. No. 11-402 ML, slip op. (D.R.I. Aug. 28, 2012).  First of all, Patterson was a statute of limitations dismissal.  We don’t usually cover those, because the facts are very case-specific, and the law is very state-specific.

But we have exceptions. One of those exceptions is the issue of cross-jurisdictional class action tolling of the statute of limitations.  We feel strongly enough about that ill-conceived notion that we devote one of our scorecards to it.

That issue came up in Patterson − but first, the case’s rather tortured procedural history:

Plaintiffs initially pursued a claim against Defendant and the generic pharmaceutical drug manufacturers in the United States District Court for the District of Columbia on March 5, 2009.  On November 9, 2009, the claims against Novartis were separated from the claims against the generic drug manufacturers by the United States Judicial Panel on Multidistrict Litigation.  The claims against Aredia were transferred to the [Aredia/Zometa MDL]. . . .  Novartis moved to dismiss Plaintiffs’ claims against it pursuant to Fed. R. Civ. P. 12(c) on the ground that the use of “and/or” to describe the drug manufacturer was insufficient to state a claim for relief against Novartis.  Over Plaintiffs’ Objection, the [MDL] Court . . . granted the Motion and dismissed Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(c).  Plaintiffs appealed . . . and their appeal was denied. Shortly thereafter, Plaintiffs refiled the case in this District.

Patterson, slip op. at 2-3.

Basically the Patterson plaintiff failed to identify the defendant as the manufacturer, instead using weasel words “and/or” to muddy up his complaint.  Although plaintiffs used to be able to get away with that kind of thing, TwIqbal precludes that kind of vague language – as we discussed in this post, back in 2009, specifically about “and/or”.

Only after playing out the string in the MDL did the plaintiff in Patterson bother with filing a new complaint.  By that time the statute of limitations had run.  It turns out that, despite filing the original complaint in DC, litigating it in Tennessee, and ultimately filing a second action in Rhode Island, plaintiff was really a Massachusetts resident.  Again, we have no idea why the plaintiff made some of the tactical choices he did − and apparently neither did the court.  Patterson, slip op. at 11.

The plaintiff offered four arguments why he should be allowed to skate under a three-year statute of limitations despite filing the complaint six years after the injury.  We don’t care about two of them:  the discovery rule (too fact specific), and equitable tolling (too state specific).

We care a little about the Massachusetts saving statute argument, but only because that demonstrates that a TwIqbal dismissal is on the merits, and not merely a “matter of form.”  “The case law is clear that a dismissal under Rule 12 is a final decision on the merits.”  Patterson, slip op. at 9.  A dismissal on the merits cannot be revived by a saving statute.

We care a lot about the cross-jurisdictional class action tolling issue.  The court (sitting in Rhode Island) refused to become the first court anywhere to predict that Massachusetts would allow an out of state class action (here, in the MDL court in Tennessee) toll its statute of limitations:

Plaintiffs’ cross-jurisdictional class-action tolling argument asks this Court to engage in an exercise of legal gymnastics to save Plaintiffs’ Complaint.  In particular, Plaintiffs argue that the filing of an Aredia class action in Tennessee tolled the statute of limitations nationally until such action was dismissed on November 14, 2007.  The issue of such tolling is controversial, and Plaintiffs have not identified any Massachusetts cases adopting the theory.  Moreover, the case law indicates that “few states” adopt such tolling for class actions filed in another jurisdiction and that “several federal courts have declined to import the doctrine into state law where it did not previously exist.”  I decline to apply cross-jurisdictional class action tolling in the present case, since Plaintiffs have not shown that Massachusetts has adopted tolling of this nature, nor that it would.  It is not this Court’s role sitting in diversity to create new state law in Massachusetts; thus I reject the arguments advanced by Plaintiffs on these grounds.

Patterson, slip op. at 10-11 (citations omitted).

Bingo!  Not only does Patterson go onto our cross-jurisdictional tolling scorecard as the first Massachusetts decision on the issue, but it warms our blogging hearts to see a federal court refusing to make wildly expansive predictions of state tort law under the Erie doctrine (another proposition we’ve advocated here at DDLaw since the beginning).

Thus, we follow Aredia/Zometa not because Joe makes it easy − although that helps − but because (like Bone Screw before it), that litigation raises a host of interesting issues.  We wish the defense well as it tackles the difficult task (again, like Bone Screw) of “winning” a mass tort after remand from the MDL.

Over a decade ago, Bexis convinced the Fourth Circuit to predict that Virginia would reject cross-jurisdictional class action tolling – the notion that a meritless class action filed in one jurisdiction could suspend the running of the statute of limitations in another jurisdiction.  See Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999).  But what was won in Wade had a hard time staying won.  Some federal courts, deviating from their federalist duty to construe state law conservatively, nonetheless made conflicting predictions that, maybe Virginia law (despite not recognizing class actions at all) would allow cross-jurisdictional tolling.  See Torkie-Tork v. Wyeth, 739 F. Supp.2d 887 (E.D. Va. 2010); Shimari v. CACI International, Inc., 2008 WL 7348184 (E.D. Va. Nov. 25, 2008).

But not all courts.  In In re Fosamax Products Liability Litigation, 694 F. Supp.2d 253 (S.D.N.Y. 2010), the court followed Wade in another multidistrict litigation (Wade had followed an MDL remand).  The plaintiffs appealed, and the Second Circuit certified the question to the Virginia Supreme Court, which accepted the appeal.

Virginia’s highest court has now killed cross-jurisdictional class action tolling dead in that jurisdiction.  Casey v. Merck & Co., No. 111438, slip op. (Va. Mar. 2, 2012).  Good riddance, we say.  It was a long enough time coming – as was the underlying Fosamax class action decision.  The plaintiffs wanted over two years of tolling – just for filing a meritless complaint – because it took various courts (it was an MDL, after all) from September 15, 2005 until January 28, 2008 to dismiss the patently bogus personal injury class action.

Continue Reading At Long Last – Virginia Definitively Rejects Class Action Tolling

Cross-jurisdictional class action tolling.  Even though Bexis invented the phrase, we hate it.  We’ve lambasted that concept many times on this blog, see here.  Basically:  (1) the law should not reward the filing of meritless class actions by tolling the statute of limitations; (2) lawyers and courts in one jurisdiction should not be allowed to manipulate the statutes of limitations of other jurisdictions; and (3) each state is a sovereign, and should be able to set its own tolling (and other) rules without outside interference.  In fact, we’re so anti-cross-jurisdictional class action tolling that we maintain a scorecard concerning this rather arcane legal topic.

Another peeve that we’ve occasionally petted is the tendency of some courts – particularly in the Second Circuit – to assume that they know more about the law of other states than do those other states’ courts.

Those two threads come together in Casey v. Merck & Co., ___ F.3d ___, 2011 WL 3375104 (2d Cir. Aug. 5, 2011), where for once the Second Circuit decided not to play the “New Yorkers know best” card and instead certified the cross-jurisdictional class action tolling question to the Virginia Supreme Court.

Once again, the issue in dispute goes back to our Bone Screw days – when we first learned to hate cross-jurisdictional class action tolling.  The Bone Screw MDL plaintiffs filed an unsuccessful nation-wide class action (which back then was a lot less futile than personal injury class actions have since become).  Despite losing class certification, tardy Bone Screw plaintiffs around the country still claimed that their states’ statutes of limitations should be considered tolled by the unsuccessful MDL class action.

They lost.

Continue Reading Cross-Jurisdictional Tolling Certified