TODD J. CAMPBELL, District Judge.
Pending before the Court is Defendant's Motion for Summary Judgment (Docket No. 3485). For the reasons stated herein, Defendant's Motion is GRANTED.
Plaintiff Robert Foster brings this action as the personal representative of Betty Foster, deceased, alleging that Defendant's drugs, Aredia and Zometa, caused
"Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); Pennington v. State Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir.2009). The party bringing the summary judgment motion has the initial burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts and inferences in the light most favorable to the nonmoving party. Pennington, 553 F.3d at 450; Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir.2007). The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence on which the jury could reasonably find for the nonmoving party. Rodgers, 344 F.3d at 595 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The parties do not dispute that Plaintiff's claims are state law claims to which Tennessee law applies in this diversity action. Defendant argues that Plaintiff's claims are barred by the applicable Tennessee statute, Tenn.Code Ann. § 28-3-104, which provides that actions for injuries to the person (including products liability actions) shall be commenced within one year after the cause of action accrues.
Plaintiff has admitted that he and Mrs. Foster were told that bisphosphonates caused Mrs. Foster's necrosis of the jaw on their first or second visit to Dr. Carlson. Docket No. 3581, ¶ 35. Plaintiff also admits that Mrs. Foster's first visit to Dr. Carlson was on July 27, 2004, and her second visit to Dr. Carlson was on August 2, 2004. Id., ¶ 36. Plaintiff first filed suit on September 15, 2005, more than one year later, as a member of Anderson v. Novartis, one of three putative class action complaints filed in this Court asserting claims against Novartis arising from the use of Aredia and Zometa.
Plaintiff argues that his claims are not barred, however, because a class action complaint against Novartis, filed by a different plaintiff in the Eastern District of Tennessee in December 2004,
Plaintiff argues that the commencement of the Thorn case suspended the applicable statute of limitations as to Betty Foster, who would have been a member of that class, had it been certified. Plaintiff characterizes this theory as "judicial tolling of the statute of limitations" and states that the Tennessee Supreme Court has never squarely addressed the issue. Docket No. 3607. Yet, the case cited by Plaintiff expressly notes that the Tennessee Supreme Court specifically declined to adopt a class action tolling rule such as argued here. See Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 32 (Tenn.2007).
In Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 807 (Tenn. 2000), the Tennessee Supreme Court explained that, in federal courts, commencement of a class action suspends the applicable federal 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.
The Tennessee Supreme Court declined to adopt such cross-jurisdictional tolling in Tennessee. Maestas, 33 S.W.3d at 808. "Tennessee simply has no interest, except perhaps out of comity, in furthering the efficiency and economy of the class action procedures of another jurisdiction, whether those of the federal courts or those of another state." Id. The practical effect of adopting cross-jurisdiction tolling, said the court, "would essentially grant to federal courts the power to decide when Tennessee's statute of limitations begins to run. Such an outcome is contrary to our legislature's power to adopt statutes of limitations and the exceptions to those statutes." Id. at 809; see also In re Fosamax, 694 F.Supp.2d at 258 (noting that Tennessee declines to recognize cross-jurisdictional class action tolling).
Therefore, Plaintiff cannot claim the benefit of a cross-jurisdictional tolling doctrine to save his claims from the applicable Tennessee statute of limitations. The purported class action filed in federal court does not toll the state statute of limitations in Tennessee. Accordingly, Plaintiff's action is barred as untimely filed, and the
For these reasons, Defendant's Motion for Summary Judgement is GRANTED, and Plaintiff's claims are DISMISSED.
IT IS SO ORDERED.