### IN THE SUPREME COURT OF TENNESSEE AT JACKSON April 12, 2000 Sessi

on ANTHONY MAESTAS, ET AL 

### . v. SOFAMOR DANEK GROUP, INC., ET AL 

### .

Appeal by Permission from the Court of Appeals, Western Section

Circuit Court for Shelby County No. 73518, 73049 John R. McCarroll, Jr., Judge

No. W1998-01907-SC-R11-CV - Filed December 21, 2000

The plaintiffs alleg

ed that defenda

nts’ products,

surgically

implanted in their backs, were defective. The trial court granted summary judgment for defendants on grounds that the statute of limitations had expired. The plaintiffs appealed, contending that: 1) genuine issues of material fact existed as to whether

the statute of limitations was tolled by the “discovery rule”; and 2) under the doctrine of “cross-jurisdictional tolling,” the statute of limitations was tolled during the period in which the plaintiffs sought class certification in a class action filed in federal court. We decline to adopt the doctrine of cross-jurisdic tional tolling. As t

he plainti ffs h ave conceded a “universal date of discovery” that is outside the applicable statute of

limitations, our rejection of cross-jurisdictional tolling renders the plai

ntiffs’ claims tim e-ba rred . Ac cord ingl y, we need not addr ess the “discovery rule” issue rai sed by p laintiffs. The judgment of the Court of Appeals, affirming the trial court’s grant of summary judgment, is hereby affirmed.
Tenn. R. App. P. 13 Appea l by Permission; Judgm ent of the Court o

f Appeals Affirme

d.

J ANICE M. H OLDER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and A DOLPHO A. B IRCH , J R

. and W ILLIAM M. B ARKER , J.J., joine d. F RAN K F. D ROWOTA , III, J., not participating.

Andrea S. Lestelle and Roy F. Amedee, Jr., Metairie, Louisiana, John A. Day, Nashville, Tennessee, and Lisa June Cox, Jackson, Tenn essee, for the a

ppellants, Anthony

Maestas, Eugenio

Camara, Paul Hill, and William Shook.
George Lehner, Washing ton, D.C. , Murray Levin, Philadelphia, Pennsylvania, and Sam B. Blair, Jr., Memphis, Tennessee, for the appellees, Danek Medical, Inc. and Warsaw Orthope dics, Inc.
George Lehner, Washing ton, D.C., Glen G. Re

id, Jr., John Barry

Burgess , and S am B. Blair, Jr., Memphis, Tennes see, and Murray Levin, Philadelphia, Pennsylvania, for the appellee, Sofamor Danek Group, Inc.-2-

Buckner Potts Wellford, Memphis, Tennessee, Carl R. Schenker, Jr., Washington, D.C., and Hugh F. Young, Jr., Reston, Virginia, for the amicus curiae, Product Liability Advisory Council, Inc.

J. Mark Rogers, Murf

reesboro, Tenne

ssee, for the ami

cus curiae, Ten

nessee Trial Lawyer s Association.

OPINION

The p laint iffs in this case e ach underwent b

ack surgery

in which implants we

re affixed to their spines using pedi

cle screws. These devices were manufactured by Sofamor Danek Group, Inc. (“SDG”) and other named defendants. The plaintiffs claim that the pedicle screws and implants used in the surgical p

rocedure caus

ed them injury

or exacerbated p

re-existing medic

al conditions.

Plaintiff Maestas’ implant surgery was performed on Dec ember 17, 1990. Plaintiff Camara had two such surgeries, the first on December 2, 1991, and the second on May 21, 1993. Plaintiff Hill also had two surgeries, the first on March 22 , 1992, and the second on February 21, 1994. Plaintiff Shook’s surgery was performed on June 19, 1991.

In December 1993, 20/20 , a television news program, aire d an installment in w

hich pedicle
screws and related hardware were characterized as defective. Apparently in response to the 20/20 program, a class action was filed in federal court that same month in regard to the allegedly defec tive products. Class action certification was denied on Fe bruary 24,

1995. Following d

enial of the clas s action , p laintiffs, along with hundreds of others, filed suit against SDG in Shelby County , Tennessee. Maestas filed suit on October 23, 1995; Camara, Hill, and Shook filed suit on October 12, 1995.

SDG moved for

summary judgment. Its motion was granted by the trial court on grounds that the statute of limitations had expire

d. The Court of Appe

als affirmed. We g

ranted review to

address the following issues: 1) whether genuine issues of mater i al fact exist as to when the plaintiffs discovered

or reasonably should have discovered their injuries; and 2) whether the doctrine of crossjurisdictional tolling tolled the statute of limitations in this case.

DISCOV ERY RU LE

The plaintiffs concede a universal date of discovery applicable to each of them e ven if SDG’s motion for summary

judgment had been denied. They allege in their brief that “the a iring of the 20/20 television show is the date that beg ins the running of

the statute of limita

tion regarding

all claims against Appellees.” SDG does not dispute this contention. It is therefore undisputed that the statute of limitations began to run no later than that date. The 20/20 program aired on December 17, 1993. Assuming that the s tatute of limitation

s began to run on t

hat date, plaintif

fs’ suits would still be time-barred. In order to overcome this bar, p laint iffs urge this Court to adopt the doctrine of cross-juri sdictiona l tolling.-3- CROSS-JURISDICTIONAL TOL LING

In the federal courts, “the commencement of a class action suspends the applic able statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Crown, Cork & Seal Co. v. Parker , 462 U.S. 345, 353-54 (198 3); American Pipe & Constr. Co. v. Utah , 414 U.S. 538, 554 (1974). These cases describe a tolling doctrine applicable within the same jurisdiction; that is, statutes of limitations in federal cases will be tolled pendi

ng the outcome of

class certifica

tions sought in fed

eral court.
By contrast, cro ss-juris dictional tolling implicates tolling one jurisdiction’s statute of limitations pending a judici al outcome in a for

eig n jurisdiction. In the context of the case at bar, cross-jurisdictional tolling would involv e the tolling of th

e applicable Te

nnesse e sta tute of limitations during the period in which the plaintiffs sought class certification as part of the unsuccessful class-action filed in the United States District Court for t he Ea stern District of Pennsylvania.

Under the facts of this case, cross-jurisdictional tolling would toll the commencement of the statute of limitations until February 24, 1995, the date class certification was den ied . Ac cord ingl y, eachof plaintiffs’ claims would b e timely filed if we were to adopt the doctrine and would be untimely file

d were we to reje

ct it.

Cr oss-jurisdictional tolling is ye t unexplored in Tenn

essee law. I

n fact, few sta

tes hav e addressed the issue. Some have accepted the doctrine. See Staub v. Eastman Kodak Co. , 726 A.2d 955 (N.J. Super. Ct. App. Div. 1999); Lee v. Grand Rapids Bd. of Educ. , 384 N.W.2d 165 (Mich. Ct. App. 1986); Hyatt Corp. v. Occidental Fire & Cas. Co. , 801 S.W.2d 382 (Mo. Ct. App. 1990). Others have rejected it. See Portwood v. Ford Motor Co. , 701 N.E.2d 1102 (I ll. 1998); Ohio Hosp. Ass’n v. Armstrong World Indus., Inc. , No. 76067, 2000 WL 354742 (Ohio Ct. App. April 6, 2000); Bell v. ShowaDenko K.K. , 899 S.W.2d 749 (Tex. Ct. App. 1995). Some federal cou rts have also rejected the doctrine, based upon

interpretation of

state law. See Wade v. Danek Medical, Inc. , 182 F.3d 281 (4t h Cir . 1999) (interpre ting Virginia la

w); In re “Agent Orange ” Prod. Liab. Litig. , 818 F.2d 210 (2d Cir. 1987) (interpreting Hawaii law); Thelen v. Massachusetts Mut. Life Ins. Co. , 111 F. Supp. 2d 688 (D. Md. 2000).

Cons idering all of the above authority and arguments of counsel, we dec line to adopt

th e doctrine of cross-jurisdictional tolling in Tennessee. We recognize that several jurisdictions have adopted intrajurisdictional tolling. See Wade , 182 F.3d at 286-87 (citing multiple autho rit ies); Staub , 726 A.2d at 963-64 ( same). “Tolling

the statute of limita

tions for individua

l actions fil

e d after the dismissal of a class action is sound policy when both actions are b

rought in the same

court system.” Portwood , 701 N.E.2d at 1104. The rati onale for that rule is that if the statute of limitations were not tolled, that single system would be burdened both by the class action litigation and by numerous protective filings from the members of the class seeking to preserve thei

r rights to bring suit individually should class certification be denied. See id. ; see also Wade , 182 F.3d at 286.1 At least two juri sdictions have speci

fically consi

dered the benefi

ts of one doct

rine and the

detriments

of the other. Both Te xas and Illinois have adopted intrajurisdictio nal tolling, see Grant v . Austin B rid ge Constr. Co. , 725 S.W.2d 366 (T ex. Ct. Ap p. 1987 ); Steinberg v. Chicago Med. Sch. , 371 N.E.2 d 634 (Ill. 1977 ), but have rejected cro ssjurisdi ctional tolli ng, see Bell

v. Sh owa Denk

o K.K. , 899 S.W .2d 749 (Tex. Ct. A pp. 199 5); Portwood v. Ford Motor Co. , 701 N.E.2d 1102 (Ill. 1998).
-4- We can find no com

parable benefit from cross-jurisdictional tolling, however. 1 Our adoption of cross-jurisdicti

onal tolling could

, in a general s

ense, benefit the

federal court s

ystem in its disposition of class actions. Nevertheless, Tennessee “simply has no interest, except perhaps out of
com ity, in furthering the ef f iciency and economy of the c lass action procedures of another jurisdiction, whether those of the federal courts or those of another state.” Wade , 182 F.3d at 287.

Ad option of t he doctrine would run the risk that Tennessee courts would become a clearinghouse

for cases that are barred

in the jurisdictions

in which they otherwise would have been brought. Litigants who

ordinarily

would have filed i

n other states’ courts would file in Tennessee solely because our cross-jur

isdic tional tolling doc

trine would have e

ffectively created an ove

rly generous statute of limitation s. See Wade , 182 F.3d at 287; Portwood , 701 N.E.2 d at 1004. W

e cannot sanc tion such f orum shopp ing.

We understan d that our ruling may promote “protec

tive” filings by

plaintiffs who wish

to preser ve their right to file suit in Tennessee while they seek class certification elsewhere. A ny ad ministrative burdens Ten nessee court s will suff er from thos e protectiv e filings are gr eatl y outweighed by the burdens presented by the mass exodus of rejected putative class members from federal court to Tennesse e. Any risk o

f duplicative litig

ation resu lting from the protect ive filings may be avoided by grant of a stay by the state court un

til the federal r

uling on class

certification is made. See Wade , 182 F.3d at 287 n.8.

Fin all y, the practical effect of our adoption of cross-jurisdictional tolling would be to make the commencement of

the Tennessee st

atute of limitations

contingent on the o utcome of class certification as to any litigant who is part of a putativ

e class action fil

ed in any feder al court in

the United States. Cf. Wade , 182 F.3d at 288. It would essentially grant to fede ral courts the power

to decide when Tennessee’s statute of limitations begins to run. Such an ou tcome i s contrary to our legislature’s power

to adopt statutes of limitations and the exceptions to those statutes, see, e.g. , Phillips v. Memphis Furniture Mfg. Co. , 79 S.W.2d 576, 578 (Tenn. 1935); Doe v. Coffee Cou nty Bd. of Educ. , 852 S.W.2d 899, 905 (Tenn. Ct. App. 199 2); L.H. Poppenheimer v. Bluff City Motor Homes , 658 S.W.2d 106, 111-12 (Tenn. Ct. App. 1983), and would arguably offend the doctrines of fede ral ism and dua l so vere ignt y. If the soverei gn state of Tennessee is to cede such power to the federal courts, we shall leave it to the legislature to do so.-5- CONCLUSION

We decline to adopt the doctrine of cross-jurisdictional tolling in Tennessee

. As the pl aintiffs claim a “universal dat e of d isc ove ry” that is outside the st atute of limitations , our rejection ofcrossjurisdictional tolling renders plaintiffs’ claim s time-barred. Accordingly, the judgment of the Court of Appeals affirming the trial court’s grant of summary judgment is hereby affirmed.

Costs of this appeal are taxed to plaintiffs, Anth

ony Maestas , Eugenio

Camara, Paul Hill, and Wil lia m Sh ook , fo r wh ich exe cut ion may i ssu e if nece ssa ry.

___________________________________ JANICE M. HOLDER, J USTICE