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.


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We hate to start the New Year by reporting on a dismal case but, as we said on Friday, the Montana Supreme Court’s decision in Stevens v. Novartis Pharmaceuticals Corp., 2010 MT 282 (Montana December 30, 2010), adds to this Winter of discontent. Once a Supreme Court comes out with a decision, you’re stuck with it. Smart lawyers try to make the best of such decisions, even when they are mostly bad news. Bexis is a smart lawyer, so that’s what he did on Friday, emphasizing the Montana Supreme Court’s reaffirmation of the learned intermediary rule.

And now we must confront the ugly bits in the opinion.

Before we do that, let’s confess to a smidgen of exasperation. For a couple of weeks in a row, the Monday column has had to report bad opinions. Last week it was the horrific Bausch case from the Seventh Circuit. We’re starting to feel like Stuart Scott from ESPN’s Sportscenter, when he was always saddled with providing the ‘highlights’ for the crappiest football games of the week. This was a while ago — back then, the worst teams were Tampa Bay, Green Bay, and Pittsburgh. (An LA Times sports columnist called the Steelers “Pitt Bay” to keep the Bay theme going when listing the Bottom 5 NFL teams). Poor Stuart Scott dutifully struggled to say something interesting about the latest interceptions heaved by the likes of Bubby Brister or Vinny Testaverde. Maybe that grim parade is what prompted Scott to resort to endless catch-phrases: “cool as the other side of the pillow,” “all that and a bag of chips,” and, of course, “Boo-yah.

We wish we could dismiss the Stevens case with a few catch-phrases, but it won’t be so easy. The plaintiff claimed that Novartis had failed to warn that Zometa could cause osteonecrosis of the jaw (ONJ). The plaintiff had begun taking Zometa in 2002 for lymphoma. In early 2005, the plaintiff was diagnosed with ONJ and stopped taking Zometa. ONJ is a progressive disease, so the plaintiff’s problems with it continued. More happily, the plaintiff’s cancer “was in remission, as it has been ever since.” Slip op. at 6.


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On this last day of the 2010, we’d like to wish our readers a happy, healthy, and prosperous new year.  To all our defense side readers, we further wish you success in winning your cases.

Now, because we are the Drug and Device Law Blog, we can’t just leave our post just at that.  Two

We’ve previously argued that courts should eliminate class action tolling of the statute of limitations in the mass tort context. In a nutshell, we see the rule first announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) – allowing for tolling of the statute of limitations for all members of

Here’s more proof (as if more were needed) that Herrmann’s a step slow. (And it’s again only Herrmann. This post relates to the Vioxx settlement, and Bexis is playing no role in drafting this.)

We posted last week about the Vioxx settlement. The aspect of the settlement that interested us most was finality: After AmChem

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

The response to our post in January on the Blain class action denial in the Paxil litigation, as well as the likely fallout from the just-decided reversal of class certification in Regents of University of California v. Credit Suisse First Boston (USA), Inc., 2007 WL 816518 (5th Cir. Mar. 19, 2007) (the subject of

Bexis got an unexpected present for his 51st birthday yesterday. The court denied certification of a nationwide suicidality class in the latest Paxil litigation. See Blain v. Smithkline Beecham Corp., 2007 WL 178564 (E.D. Pa. Jan. 25, 2007). This got us thinking more about what’s really going on with pharmaceutical class actions. We can’t