10-1137-cv (L) Casey v. Merck & Co., Inc.

1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
August Term, 2010 3 4 Submitted: January 27, 2011 5 Final Submission: February 16, 2011 6 Decided: August 5, 2011 7 8 Docket Nos. 10-1137-cv(L), 10-1196-cv (Con), 10-1150-cv (Con); 10-1149-cv (Con) 9 10 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 11 JOHN CASEY, INDIVIDUALLY AS ADMINISTRATOR OF THE ESTATE OF ORA 12 CASEY, REBECCA QUARLES, ROBERT SCHNURR, DOROTHY C. DELORIEA, 13 ROBERTA BRODIN, THOMAS BRODIN 14 Plaintiffs-Appellants , 15

v. 16 MERCK & CO., INC. 17 Defendant-Appellee

. 18
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 19 Before: SACK, LIVINGSTON, and LOHIER, Circuit Judges

. 20 Appeal from a decision of the United States Distri ct Court for the Southern District of New York 21 (Keenan, J. ), concluding that the plaintiffs’ product liability claims, brought under Virginia law, 22 were not tolled by the pendency of a putative federal class action that raised identical claims, and 23 dismissing the plaintiffs’ claims as time-barred. We conclude that the availability of “cross24 jurisdictional tolling” in this context raises questions of Virginia law that are appropriately 25 certified to the Supreme Court of Virginia. Qu estions certified to Supreme Court of Virginia. 261 By prior order of our Court, the Casey , Quarles , and Schnurrcases were consolidated on appeal. The appeal in Brodinwas originally assigned to a different panel of this Court. See Brodin v. Merck & Co. , No. 10-1149-cv (2d Cir.) (submitted Feb. 3, 2011). By order filed this day it has now been consolidated with the other three cases. 2 Timothy M. O’Brien, Levin Papantonio Thomas 1 Mitchell Rafferty & Proctor, P.A., Pensacola, FL, 2 forPlaintiffs-Appellants. 3 Norman C. Kleinberg, Theodore V.H. Mayer, 4 William J. Beausoleil, Hughes Hubbard & Reed 5 LLP, New York, NY; Paul F. Strain, David J. 6 Heubeck, Venable LLP, Baltimore, MD, for 7 Defendant-Appellee. 8 9 LOHIER, Circuit Judge : 10 This consolidated appeal involves questions of Virginia law relating to equitable and 11 statutory cross-jurisdictional tolling, and in particular whether Virginia law recognizes 12 the tolling doctrine established in American Pipe & Construction Company v. Utah , 414 U.S. 13 538 (1974). 14 The plaintiffs in these four cases appeal from a judgment of the United States District 15 Court for the Southern District of New York (Keenan, J. ), granting summary judgment in favor 16 of defendant Merck Sharp & Dohme Corporation (“Merck”), formerly known as Merck & Co., 17 Inc., and dismissing their product liability claims for injuries allegedly caused by Merck’s 18 prescription drug, Fosamax. 1 The plaintiffs filed their separate lawsuits in the Southern District 19 of New York based on diversity jurisdiction under 28 U.S.C. § 1332. 20 The plaintiffs, all residents of Virginia, raise only state law claims and do not dispute 21 either that Virginia’s two-year statute of limitations applies to their claims or that they filed their 22 actions more than two years after they were first injured. Instead, they argue that the statute of 233 limitations was tolled by the pendency of a federal class action filed in the United States District 1 Court for the Middle District of Tennessee on September 15, 2005, which alleged similar injuries 2 and raised similar claims. In particular, the pl aintiffs argue that the “rule” of American Pipe 3 should apply, and, accordingly, that the statute of limitations should have been tolled from 4 September 2005 until the motion for class certification was denied in that case in January 2008 – 5 in other words, for some 28 months. 6 The District Court rejected the plai ntiffs’ argument that American Pipeapplied to their 7 claims and concluded instead that Virginia law controlled the timeliness of the action. Relying 8 on the Fourth Circuit’s decision in Wade v. Danek Medical, Inc. , 182 F.3d 281 (4th Cir. 1999), 9 which predicted that the Supreme Court of Virginia would reject tolling for federal class actions 10 filed in foreign jurisdictions, the District Court held that Virginia law did not permit tolling of a 11 state statute of limitations due to the pendency of a class action filed in another jurisdiction. See 12 In re Fosamax Prods. Liab. Litig. , 694 F. Supp. 2d 253, 258 (S.D.N.Y. 2010). We agree with the 13 District Court that Virginia law governs the questi on of whether the plaintiffs’ claims were tolled 14 pending the Tennessee class action. But, both Wadeitself, and state and federal court decisions 15 in Virginia since Wade , leave us less certain whether equitable or statutory cross-jurisdictional 16 tolling is available under Virginia law. Accordingly, we certify the following two questions to 17 the Supreme Court of Virginia and stay reso lution of these cases in the interim: 18 (1) Does Virginia law permit equitable tolling of a state statute of limitations due to the 19 pendency of a putative class action in another jurisdiction? 20 (2) Does Va. Code Ann. § 8.01-229(E)(1) permit tolling of a state statute of limitations 21 due to the pendency of a putative class action in another jurisdiction? 222In addition to these claims, Ora Casey’s husband, John Casey, and Roberta Brodin’s husband, Thomas Brodin, raised claims for loss of consortium, and Deloriea, Quarles, and (continued...) 4 BACKGROUND 1 Fosamax is a prescription drug manufactured by Merck that falls within a class of drugs 2 known as bisphosphonates, which are commonly used to treat bone conditions such as 3 osteoperosis. Fosamax is a nitrogenous bisphosphonate, and nitrogenous bisphosphonates have 4 allegedly been linked to osteonecrosis – bone death – of the jaw. Plaintiff Rebecca Quarles was 5 prescribed and took Fosamax for roughly six months starting in 2002. She was diagnosed with 6 osteonecrosis of the jaw and failure of dental implants on October 31, 2003, and sued Merck on 7 December 17, 2007. Dorothy Deloriea was prescribed and took Fosamax in 1999, and 8 developed osteomyelitis and osteonecrosis of the jaw in 2004. She commenced her action 9 against Merck on November 12, 2008. Ora Casey was prescribed and took Fosamax for four 10 years, beginning in July 2000. She was diagnosed with osteonecrosis of the jaw in 2004, and 11 died three years later, in December 2007. Casey’s estate initiated this action on January 25, 12
2008. Roberta Brodin was prescribed and took Fo samax beginning in February 2001 and was 13 diagnosed with osteonecrosis of the jaw in 2005. She initiated her action on May 1, 2007. 14 Quarles, Deloriea, Casey, and Brodin each sued Merck in separate actions in the 15 Southern District of New York, raising exclus ively Virginia state law claims. The actions 16 asserted diversity of citizenship as the basis for federal jurisdiction and alleged common claims 17 for strict liability, failure to warn, breach of express and implied warranty, and negligence in the 18 design, testing, development, manufacture, labeling, marketing, distribution and sale of 19
Fosamax. 2 202 (...continued) Roberta Brodin raised claims for fraudulent misrepresentation and fraudulent concealment.

3 The Judicial Panel on Multidistrict Litigation consolidated certain Fosamax cases in the Southern District of New York by order dated August 16, 2006. In re Fosamax Prods. Liab. Litig. , 444 F. Supp. 2d 1347 (J.P.M.L. 2006). 5 In September 2005, before the plaintiffs filed these cases, a putative class action asserting 1 substantially identical claims on behalf of a nationwide class of Fosamax users was filed in the 2 Middle District of Tennessee. That action, Wolfe v. Merck , was transferred to the Southern 3 District of New York by the Judicial Panel on Multidistrict Litigation. 3 The District Court 4 denied the motion to certify the class in Wolfe v. Merck on January 28, 2008. SeeIn re Fosamax 5 Prods. Liab. Litig. , No. 1:06-md-01789 (S.D.N.Y. Jan. 28, 2008) (order denying class 6 certification). At least for purposes of this appeal, Merck concedes that the plaintiffs would have 7 been members of the certified class had the certification motion been granted by the District 8
Court. 9 On June 23, 2009, Merck moved for summary judgment against all three plaintiffs, 10 arguing that New York’s borrowing statute required application of Virginia’s two-year statute of 11 limitations. Merck further argued that, because the plaintiffs’ complaints were all filed more 12 than four years after they allegedly sustained their injuries, their claims were time-barred. 13 Citing American Pipe , the plaintiffs responded that their claims were timely because 14 Virginia’s two-year statute of limitations was tolled for 28 months during the pendency of the 15 Wolfeclass action, until the District Court denied cl ass certification. The plaintiffs argued that, 16 under American Pipe , which involved federal claims and a federal statute of limitations, the 17 filing of a putative class action tolls the limitations period for absent class members, regardless 186 of whether the claims of absent members arise under federal or state law or whether the 1 applicable state’s law permits tolling. 2 On March 15, 2010, the District Court granted Merck’s summary judgment motion. See 3 In re Fosamax Prods. Liab. Litig. , 694 F. Supp. 2d 253 (S.D.N.Y. 2010). The court agreed with 4 Merck that New York choice of law rules applie d and that New York’s borrowing statute, N.Y. 5 C.P.L.R. 202, required application of “the shorter limitations period, including all relevant 6 tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.” 7 Id. at 256 (quoting Stuart v. Am. Cyanamid Co. , 158 F.3d 622, 627 (2d Cir. 1998)) (internal 8 quotation marks omitted). Because the cause of action accrued in Virginia, the District Court 9 applied Virginia’s shorter, two-year statute of limitations. Id. 10 The District Court rejected the plaintiffs’ contention that the pendency of the Wolfeclass 11 action tolled Virginia’s limitations period for their claims. The court observed that American 12 Pipeinvolved the tolling of a federal statute of limitations period based on the filing of a prior 13 federal, rather than state, cause of action. Id. at 257. It held, relying on our decision in In re 14 Agent Orange Product Liability Litigation , 818 F.2d 210, 213 (2d Cir. 1987), that “a federal 15 diversity court applies state law in determining whether a statute of limitations has been tolled,” 16 and that “the applicable state statute of limitations – here, that of Virginia – was tolled during the 17 pendency of the Wolfeclass action only if the American Pipe rule also applies under the laws of 18 that state.” 694 F. Supp. 2d at 257. 19 The District Court next addressed whether Virginia law would allow the Wolfeclass 20 action filed in a foreign jurisdiction (Tennessee) to toll the limitations period of an action arising 21 in Virginia – in other words, whether Virginia law would allow for “cross-jurisdictional class 227 action tolling.” Id. at 257. The District Court asserted that “[n]o Virginia court has answered 1 these questions,” id. at 258, but that the Fourth Circuit had “definitively” held that “the Virginia 2 Supreme Court would not adopt a cross-jurisdictional equitable tolling rule.” Id. (quoting Wade , 3 182 F.3d at 287) (internal quotation marks omitted). Deferring to Wade , the District Court found 4 that the plaintiffs’ claims were not tolled and were therefore untimely under Virginia law. It 5 accordingly granted summary judgment in favor of Merck. 694 F. Supp. 2d at 259. 6 This appeal followed. 7 DISCUSSION 8 The central question in this appeal is whether the pendency of a putative class action filed 9 in a different jurisdiction tolled the statute of limitations for the plaintiffs’ state law claims. That 10 question turns on (1) whether state or federal tolling law applies in this context and (2) if state 11 tolling law does apply, the content of Virginia law. “We review legal conclusions, [including] 12 the application of a statute of limitations, de novo .” Somoza v. New York City Dep’t of Educ. , 13 538 F.3d 106, 112 (2d Cir. 2008). 14 1. American Pipe Tolling 15 In American Pipe , the Supreme Court announced a rule intended “to preserve the 16 individual right to sue of the members of a propos ed class until the issue of class certification has 17 been decided.” In re Agent Orange , 818 F.2d at 214. Although the plaintiffs do not dispute that 18 Virginia’s two-year limitations period applies to their claims, they assert that American Pipe 19 announced a federal tolling rule that applies to all cases filed in federal court, regardless of the 20 nature of the claims or the basis for federal jurisdiction. Whether American Pipetolling is 21 applicable to state causes of action is an open question in this Circuit. 228 We addressed this issue in In re Agent Orange . In that case, three employees of the 1 University of Hawaii filed a class action seeking relief for a putative class of individuals on the 2 Hawaiian island of Kauai who had been exposed to the toxic chemical Agent Orange. 818 F.2d 3 at 212-13. Hawaii’s two-year statute of limitations began to run in 1979, and the employees 4 commenced their tort action in 1982. Id. at 213. However, in reliance on American Pipe , they 5 asserted that the statute of limitations for their claims should be tolled based on the pendency of 6 a separate class action filed in a different jurisdiction alleging injuries caused by Agent Orange. 7 In dictum , we noted that it was “doubtful that . . . American Pipe . . . can be treated as applicable 8 precedent” given that “[t]he limitation period[] of American Pipe . . . [was] derived from [a] 9 federal statute[]” whereas in In re Agent Orange , “we [were] dealing with Hawaii’s limitation 10 statutes.” Id. at 213. We then concluded that the plaintiffs could not rely on the rule of 11 American Pipe in any event because they were not and could not have become a part of the other 12 class action. Seeid. at 214. 13 We recognize that, like the District Court here, certain district courts have interpreted our 14 decision in In re Agent Orange as holding conclusively that American Pipe can apply only to 15 cases involving federal causes of action and federal statutes of limitation, and that state rather 16 than federal law applies to tolling issues whenever jurisdiction rests on diversity of citizenship. 17 See, e.g. , In re Rezulin Prods. Liab. Litig. , No. 00Civ.2843, 2006 WL 695253, at *1 (S.D.N.Y. 18 Mar. 15, 2006); Williams v. Dow Chem. Co. , No. 01 Civ. 4307, 2004 WL 1348932, at *11 19 (S.D.N.Y. June 16, 2004). But seePrimavera Familienstifung v. Askin , 130 F. Supp. 2d 450, 20 516 (S.D.N.Y. 2001) (“[T]he Second Circuit has assumed the validity of Justice Rehnquist’s 21 categorical statement in his Chardon v. Fumero Soto dissent . . . .”) (internal citations and 22 quotation marks omitted), modified on other grounds , 130 F. Supp. 2d 450. We do not read In re 239 Agent Orangeor any of our precedents, however, as either conclusively resolving the question of 1 American Pipe’s application to federal court cases arising under state law or addressing the issue 2 of cross-jurisdictional tolling. 3 To the extent that In re Agent Orangedid not squarely resolve the issue, we now join the 4 majority of our sister courts that have addr essed the issue in holding that a federal court 5 evaluating the timeliness of state law claims must look to the law of the relevant state to 6 determine whether, and to what extent, the statute of limitations should be tolled by the filing of 7 a putative class action in another jurisdiction. See, e.g. , Clemens v. DaimlerChrysler Corp. , 534 8 F.3d 1017, 1025 (9th Cir. 2008) (declining to import a cross-jurisdictional tolling rule into 9 California law, which otherwise does not have such a rule, and finding that “[t]he rule of 10 American Pipe – which allows tolling within the federal court system in federal question class 11 actions – does not mandate cross-jurisdictional tolling as a matter of state procedure”); Wade , 12 182 F.3d at 287-90 (refusing to import a cross-jurisdictional tolling provision into Virginia law, 13 and holding that state law tolling provisions trump conflicting federal law where a federal court 14 sits in diversity); Vaught v. Showa Denko K.K. , 107 F.3d 1137, 1147 (5th Cir. 1997) (“[T]his 15 Texas rule clearly conflicts with the well-established federal practice on class action tolling. We 16 conclude, however, that, for this case, the federal interest in that practice does not trump the 17 Texas tolling rule.”). We find the reasoning of these cases compelling and agree that tolling here 18 is properly understood to be a question of state law. See Guar. Trust Co. of N.Y. v. York , 326 19 U.S. 99, 110 (1945); Schermerhorn v. Metro. Transp. Auth. , 156 F.3d 351, 354 (2d Cir. 1998). 20
2. Determining Virginia Law 21 To determine questions of state law, we look principally to the opinions of that state’s 22 courts. Where, as here, a question of state law has not been conclusively resolved by those 2310 courts, our general practice is to look next to the law of the circuit in which the state is located, 1 here the Fourth Circuit. SeeFactors, Etc., Inc. v. Pro Arts, Inc. , 652 F.2d 278, 283 (2d Cir. 2 1981). However, where circuit law is no more conclusive, or where we have some reason to 3 question the continuing validity of that law, certification of one or more questions to a state’s 4 highest court is an option at our disposal. See , e.g. , Desiano v. Warner-Lambert & Co. , 467 F.3d 5 85, 92 n.4 (2d Cir. 2006). Indeed, because certificati on was not available to the court in Factors , 6 it could not resolve the question of our ability to certify a question of state law to a state court 7 even though the question had already been answered by the sister circuit whose jurisdiction 8 included the state in question. We did, however, appear to anticipate the issues that might then 9 arise. SeeFactors , 652 F.2d at 282 (describing the policy rationales for deferring to sister 10 circuits on questions of state law, “[e]xcept in those [then-]few jurisdictions permitting a federal 11 court to certify”). When, as here, we lack suffici ent indicia on which to decide an issue of state 12 law despite a relevant prior federal court of appeals decision, certification to a state court may be 13 warranted. Factors does not prevent us from certifying a question of Virginia law to a Virginia 14 court even though there is a prior decision on point from the Fourth Circuit. 15 a. Certification 16 Under our rules and those of the Supreme C ourt of Virginia, we may certify a question to 17 that body where a question of state law is “determinative” of a claim before us and “it appears 18 that there is no controlling precedent on point in th e decisions of [the Supreme Court of Virginia] 19 or the Court of Appeals of Virginia.” Va. S up. Ct. R. 5:40(a); 2d Cir. Local R. 27.2. We “do not 20 certify every case that meets these criteria,” but instead evaluate at least three factors in 21 determining whether certification is appropriate: “(1) the absence of authoritative state court 2211 decisions; (2) the importance of the issue to th e state; and (3) the capacity of certification to 1 resolve the litigation.” O’Mara v. Town of Wappinger , 485 F.3d 693, 698 (2d Cir. 2007). 2 b. Wade v. Danek Medical, Inc. 3 4 As the District Court correctly observed, 694 F. Supp. 2d at 258, the Supreme Court of 5 Virginia has never addressed the precise questi on of whether Virginia law would allow for a 6 cross-jurisdictional tolling rule – either equitabl e or statutory. The Fourth Circuit, however, 7 provided some guidance over a decade ago in Wade . Under Factors , our analysis of Virginia law 8 starts, therefore, with Wade , which held that the Supreme Court of Virginia “would not adopt” 9 an equitable rule of cross-jurisdictional tolling for federal class actions. 10 Jeannette Wade initiated a products liability action against the manufacturer of a spinal 11 fixation device that doctors implanted in Wade’s back to ease her back pain. The device caused 12 Wade to develop arachnoiditis and incontinence in April 1993, and she had the device removed 13 in April 1995. 182 F.3d at 284. Meanwhile, two federal class actions were filed against various 14 manufacturers of the same spinal fixation devices , including Danek Medical, in federal courts in 15 Pennsylvania and Louisiana. Id. Wade and her husband were putative class members in both 16 actions. Id. Wade filed her action in the Eastern District of Virginia in October 1995, and the 17 district court dismissed it as untimely. On appeal, Wade argued that Virginia’s statute of 18 limitations was tolled by the pendency of the federal class actions. 19 The Fourth Circuit affirmed the district court’s dismissal, finding that the Supreme Court 20 of Virginia would not apply an equitable tolli ng rule for federal class actions filed outside 21 Virginia for three reasons. Id. at 286-88. First, the court determined that Virginia has no interest 22 in promoting class action procedures in other jurisdictions because it has no class action 23 procedures itself. Second, the court explained that Virginia has an interest in avoiding the flood 244The relevant section of the Virginia tolling statute states: Except as provided in subdivision 3 of th is subsection, 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 wh ich such action may be brought, and another action may be brought within the remaining period. Va. Code Ann. § 8.01-229(E)(1).
12 of follow-on filings that would result if it adopteda cross-jurisdictional class action tolling rule. 1 Third, the court noted that the Supreme Court of Virginia has “historically resisted” becoming 2 “dependent on the resolution of claims in other jurisdictions,” as would inevitably occur if “the 3 length of the limitations period var[ied] depending on the efficiency (or inefficiency) of courts 4 in” foreign jurisdictions. Id. at 288. Focused as it was on the issue of equitablecross5 jurisdictional tolling, the court in Wadereferred only obliquely to Virginia’s tolling statute, Va. 6 Code Ann. § 8.01-229(E)(1), 4describing the statute as “providing for tolling of the limitations 7 period in certain other situations.” Id. at 286 n.4 (emphasis added). The Fourth Circuit did not 8 identify the “other situations” in which the tolling statute would apply. 9 c. Post-Wade Decisions 10 Subsequent decisions prompt us to question further the validity of Wade ’s 11 pronouncement that the Supreme Court of Virginia would not adopt a cross-jurisdictional 12 equitable tolling rule. Two years after Wade , the Supreme Court of Virginia for the first time 13 considered whether Virginia’s tolling statute, Va. Code Ann. § 8.01-229(E)(1), was triggered by 14 an action filed in a foreign jurisdiction, and concluded that the statute applies to “actions filed in 15 federal courts.” Welding, Inc. v. Bland Cnty. Serv. Auth. , 541 S.E.2d 909, 912 (Va. 2001). 16 Welding, a construction company, sued the Bland County Service Authority in federal court in 1713 West Virginia for payments allegedly due under a construction contract. The district court 1 dismissed the action for lack of jurisdiction pursuant to a forum-selection clause in the contract. 2 Id. at 911. Welding filed a new action in Virginia state court, and the state trial court dismissed 3 Welding’s action as untimely under Virginia’s applicable six-month limitations period because 4 filing it in a forum “outside the jurisdiction of the Commonwealth” prevented Weld from 5 invoking Virginia’s tolling statute. Id. (internal quotation marks omitted). 6 The Supreme Court of Virginia reversed. It explained that “[t]here is no language in 7 [Virginia’s tolling statute] which limits or restrict s its application to a specific type of action or 8 precludes its applicability to actions filed in a federal court. Accordingly, we conclude that the 9 trial court erred in construing Code § 8.01-229(E)(1) as inapplicable to actions filed in federal 10 courts.” Id. 11 In Shimari v. CACI International, Inc. , No. 1:08cv827, 2008 WL 7348184 (E.D. Va. 12 Nov. 25, 2008), the United States District Court for th e Eastern District of Virginia addressed the 13 issue presented here, namely, “whether cross-jurisdictional tolling applies under Virginia law to 14 the common-law tort claims of putative plaintiffs in a class action lawsuit filed in federal court” 15 in another jurisdiction “where certification is later denied.” Id. at *1. The district court in 16 Shimari acknowledged that Wade“declined the application of cross-jurisdictional tolling, 17 predicting that Virginia would not adopt it.” Id. But it asserted that Wadehad wrongly 18 predicted the evolution of Virginia law in view of Welding , which “required” the court “to apply 19 Virginia’s equitable tolling rules whether jurisdiction is based on federal question or diversity.” 20 Id. at *2 (“In Welding , the court expressly recognized cross-jurisdictional tolling in Virginia. As 21 a result, the filing of the . . . class action equitably tolled the statute of limitations . . . .”). 2214 More recently, in Torkie-Tork v. Wyeth , 739 F. Supp. 2d 887 (E.D. Va. 2010), the 1 United States District Court for the Eastern District of Virginia again concluded that Virginia 2 law permitted cross-jurisdictional tolling in the context of class actions. The facts in these cases 3 on appeal are similar to the facts in Torkie-Tork . There, Georgia Torkie-Tork, a Virginia citizen, 4 sued a pharmaceutical manufacturer of a drug that allegedly injured her. She filed her complaint 5 in Virginia state court on July 2, 2004, asserting claims of negligence, defective design, failure to 6 warn, breach of express warranty, negligent mi srepresentation, and fraud. 739 F. Supp. 2d at 7 889. The action was first removed to the Eastern District of Virginia in August 2004, and then 8 transferred to the Eastern District of Arkansas as part of a multi-district litigation. At the 9 conclusion of the multi-district litigation, the case was transferred back to the Eastern District of 10 Virginia, where the defendant moved for summary judgment on the ground that the action was 11 untimely, among other things. Id. Torkie-Tork responded that a federal class action in the 12 Northern District of Illinois encompassing cla ss members who suffered injury after taking the 13 same drug served to toll the Virginia limitations statute. Id. 14 The district court in Torkie-Tork concluded that, in light of Welding , Wade ’s 15 pronouncement that the Supreme Court of Virginia would refuse to adopt cross-jurisdictional 16 class action tolling was no longer good law. Id. at 892-93. The court agreed with the court in 17 Shimari that Wadehad misconstrued Virginia law and that Welding “refutes Wade ’s rationale 18 and holding,” even though it concerned statutory rather than equitable tolling. 739 F. Supp. 2d at 19 893. Instead, it held that Virginia Code Ann. § 8.01-229(E)(1) “operates to toll Virginia’s statute 20 of limitations for the time during which the plaintiff is a putative member of a federal class 21 action suit” in another jurisdiction. Id. at 894. The court reasoned that “there is no coherent 22 basis to distinguish the tolling statute’s application to a standard federal civil suit – to which, 2315 after Welding , statutory tolling clearly applies – from its application to a federal class action 1 suit.” Id. 2 Welding , Shimari , and Torkie-Tork give us reason to believe that Wade may not, in fact, 3 be a correct statement of Virginia law. To be sure, there are important factual and procedural 4 differences between Welding , Shimari , and Torkie-Tork on the one hand, and Wadeon the other 5 hand. For example, Welding did not involve a class action or implicate the policy interests 6 discussed in Wade as reasons to reject cross-jurisdictional tolling in the class action context. 7 And Torkie-Tork focused entirely on Virginia’s tolling statute, id. at 892-95, without analyzing 8 Virginia’s equitable tolling doctrine. Nonetheless, these post-Wadedecisions give us reason to 9 conclude that the relevant question of state law necessary to resolve this appeal remains an open 10

one. 11 As previously noted, because certification is available in this case, and we believe that we 12 lack sufficient indicia of Virginia state law, we can ask the Supreme Court of Virginia itself 13 whether Wadeaccurately predicted Virginia law. We conclude that certification to the Supreme 14 Court of Virginia is appropriate on these facts. In particular, we are satisfied that there is a lack 15 of authoritative state court decisions on point, that the issue is one of considerable importance to 16 the state, and that these issues arise with some frequency. Finally, we are confident that 17 certification can and will resolve this litigation as the issues to be certified are determinative of 18 this appeal. Va. Sup. Ct. R. 5:40(a). 19 CONCLUSION 20 For the reasons set forth above, we hereby certify the following two questions to the 21 Supreme Court of Virginia: 2216 (1) Does Virginia law permit equitable tolling of a state statute of limitations due to the 1 pendency of a putative class action in another jurisdiction? 2 (2) Does Va. Code Ann. § 8.01-229(E)(1) permit tolling of a state statute of limitations 3 due to the pendency of a putative class action in another jurisdiction? 4 It is hereby Ordered that the Clerk of Court transmit to the Clerk of the Supreme 5 Court of Virginia a Certificate, together with this decision and a complete set of the briefs, 6 appendices, and record filed in this Court by the parties. This panel will retain jurisdiction to 7 consider all issues that remain on these conso lidated appeals once the Supreme Court of Virginia 8 has either provided us with its guidance or declined certification. 9