MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

At issue in this removed diversity product liability action is whether judgment for defendant is warranted because the undisputed record reflects that plaintiffs claims are untimely. More specifically, defendant argues that this suit is time-barred because all of the claims accrued beyond Virginia's two-year limitations period for personal injury suits. Plaintiff contends that the suit was timely filed because (i) the limitations period did not begin to run until she discovered that defendant's product may have caused her injury, (ii) the limitations period for her fraud claim is subject to a so-called "discovery rule," even if the rest of her claims are not, and (iii) the limitations period was tolled by the filing of a federal class action suit of which plaintiff was a putative, unnamed class member. Because the matter has been fully briefed, and the facts and legal arguments are adequately set out in the existing record, oral argument is dispensed with as it would not aid the decisional process. Accordingly, the matter is now ripe for disposition.

I.1

Plaintiff, Georgia Torkie-Tork, is a citizen of Virginia. Defendant, Wyeth, is a Delaware corporation with its principal place of business in New Jersey. During times relevant to this litigation, defendant was one of the world's largest pharmaceutical companies2 and the maker of Prempro, an FDA-approved hormone therapy drug that contains a combination of estrogens and a progestin, and is indicated for treatment of menopausal symptoms.

Beginning in or about 1996, plaintiff began experiencing severe menopausal symptoms. Her then-physician, Dr. Joel Schulman, prescribed Prempro for treatment of those symptoms. The Prempro proved effective, and she continued the treatment until June 2002, when an abnormality was noted on her annual mammogram. At the direction of her physician, Dr. Ronald Orleans, she immediately discontinued her Prempro treatment, and a follow-up sonogram and needle biopsy were performed. Based on the results of these procedures, plaintiff was diagnosed with breast cancer on June 18, 2002. She underwent a partial mastectomy on June 27, 2002 to remove the cancerous tissue. A pathology report signed on July 3, 2002 confirmed that the cancer was hormone receptor positive, meaning that the cancer was of a type caused by hormones such as those contained in Prempro. A surgical procedure on July 24, 2002 confirmed that the June 27, 2002 mastectomy had removed all cancerous tissue. The cancer has not recurred.

Plaintiff filed the instant action in state court on July 2, 2004, and it was removed to this district on August 13, 2004. In her complaint, plaintiff alleges that defendant is liable for the personal injury that she suffered—namely, breast cancer—as a result of her as-prescribed use of defendant's pharmaceutical product—namely, Prempro. The theories of liability that she asserts are (i) negligence, (ii) defective design, (iii) failure to warn, (iv) breach of express warranty, (v) negligent misrepresentation, and (vi) fraud.

Because numerous suits of this nature were filed, the Judicial Panel on Multidistrict Litigation convened multidistrict litigation ("MDL") proceedings in the Eastern District of Arkansas, and this matter was transferred to that district for participation in the MDL proceedings. See Torkie-Tork v. Wyeth, No. 1:04cv945 (E.D.Va. Nov. 1, 2004) (conditional transfer order). At the conclusion of the MDL proceedings, by Order dated April 8, 2010, the matter was returned to this Court for all further proceedings, including case-specific discovery, summary judgment, and, if necessary, a trial. See Torkie-Tork v. Wyeth, No. 1:04cv945 (E.D.Va. Apr. 8, 2010) (conditional remand order).

On May 14, 2010, defendant filed a motion for summary judgment on the ground that plaintiffs claims are barred by the applicable statute of limitations. More specifically, defendant contends that judgment is warranted on the basis of the undisputed factual record as the asserted claims did not accrue within two years of filing as required by the Virginia statute governing personal injury actions. See Va. Code § 8.01-243(A). Plaintiff disagrees, arguing (i) that the limitations period did not begin to run until plaintiff discovered that Prempro may have caused her injury, (ii) that her fraud claim is subject to the discovery rule and thus that claim was timely filed, and (iii) that a federal class action suit comprised of class members who suffered physical injury as a result of Prempro use tolled the Virginia limitations statute for purposes of this action. For the reasons that follow, the motion for summary judgment must be denied.

II.

The summary judgment standard is too well-settled to require elaboration here. In essence, summary judgment is appropriate under Rule 56, Fed.R.Civ.P., only where, on the basis of undisputed material facts, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).3 Importantly, to defeat summary judgment the non-moving party may not rest upon a "mere scintilla" of evidence, but must set forth specific facts showing a genuine issue for trial. Id. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the party with the burden of proof on an issue cannot prevail at summary judgment on that issue unless he or she adduces evidence that would be sufficient, if believed, to carry the burden of proof on that issue at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

III.

The statute of limitations analysis properly begins with the threshold choice of law issue. In a diversity suit such as this one, the forum state's choice of law rules govern the determination. See Guaranty Trust Co. v. York, 326 U.S. 99, 110-11, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir.2007). And in Virginia, it is well settled that the forum state's statute of limitations controls, not that of the place of the alleged wrong. See Hospelhorn v. Corbin, 179 Va. 348, 19 S.E.2d 72, 73 (1942). Thus, Virginia's limitations period applies to this action. Under Virginia law, a defendant has the burden of proof on a statute of limitations defense,4 and to this end, defendant argues that the Virginia statute governing the limitations period for personal injury actions bars this suit. In this respect, Virginia Code § 8.01-243(A) provides as follows:

Thus, Virginia law requires all personal injury suits—and all fraud claims for damages—to be brought within two years of the cause of action's accrual. All of the claims in this action are indisputably governed by § 8.01-243.5 Thus, the next step in the analysis is to determine when, under Virginia law, the causes of action "accrue[d]." Id. Separate provisions of the Virginia Code define (i) accrual for claims other than fraud and (ii) for claims alleging fraud. Accordingly, these two categories of claims are separately addressed.

A. Negligence, Product Liability, and Breach of Warranty Claims

With respect to the non-fraud claims, the inquiry is guided by Va.Code § 8.01-230, which makes clear that except where otherwise provided, accrual occurs, and the statute of limitations begins to run, on "the date the injury is sustained... and not when the resulting damage is discovered." Va.Code § 8.01-230. It follows that the relevant date for purposes of the non-fraud claims in this case is the date on which plaintiffs injury—her breast cancer—was sustained. See Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, 904 (1981) (construing Va.Code § 8.01-230 and -243) ("[T]he running of the time is tied to the fact of harm to the plaintiff."). In other words, absent tolling, plaintiffs suit is time-barred if the onset of her breast cancer occurred more than two years prior to the July 2, 2004 filing date.

The undisputed factual record conclusively shows that plaintiffs injury occurred on or before June 18, 2002, and thus, for summary judgment purposes, that is the date by which the limitations period began to run for the non-fraud claims. Specifically, the record reflects that plaintiff was diagnosed with breast cancer on June 18, 2002.6 Accordingly, the injury allegedly caused by her Prempro use must have occurred at least by that date.7 In response, plaintiff notes that her breast cancer was not determined to be hormone receptor positive breast cancer until July 3, 2002, when a lab test was performed on the removed cancerous tissue. Thus, although plaintiff acknowledges she knew she had breast cancer at the time of her diagnosis on June 18, 2002, she nonetheless contends that she did not know—and could not have known—that she had suffered a type of cancer potentially caused by the hormones contained in Prempro until the later date. Yet, assuming, arguendo, the truth of this assertion, it is irrelevant to the statute of limitations analysis because Virginia, unlike some states, does not adhere to a so-called "discovery rule" for claims other than fraud.8 Put differently, in a personal injury action alleging claims other than fraud, it does not matter when a plaintiff discovered—or reasonably could have discovered—that she was injured, or when she could have discovered that her injury was caused by the defendant's product. Rather, the only question is when the injury occurred.9 Accordingly, June 18, 2002, and not July 3, 2002, is the date on which the limitations period began to run. As this date is more than two years prior to the filing date, unless tolled, the non-fraud claims are time-barred.

B. Fraud Claim

Section 8.01-230—which provides the general definition of accrual discussed above—specifically excepts from its purview claims governed by § 8.01-249, which defines accrual, inter alia, as follows:

By its plain terms, the definition of accrual furnished by § 8.01-249 applies to fraud claims, and this definition focuses not on the date the injury occurred, but on the date the fraud was discovered or reasonably should have been discovered. Accordingly, this is the analysis that governs whether plaintiffs fraud claim was timely filed.

Defendant argues that the same two-year statute of limitations applies to all claims because plaintiffs personal injury is the gravamen of this entire suit. See Def. Mem. at 8. This argument misses the mark, for there is no dispute that the two-year statute of limitations prescribed by § 8.01-243 applies to this suit. The more significant question is which provision defines "accrual" for purposes of the fraud claim, § 8.01-230 or § 8.01-249. And on this issue, there is little doubt that § 8.01-249 governs. This is so because § 8.01-230 merely creates a general time-of-injury rule that applies to "every action," with certain enumerated exceptions including, importantly, the provision governing fraud claims, § 8.01-249. And § 8.01-249 creates the rule for fraud claims, without any exceptions, and without reference to the nature of the injury alleged or the "gravamen" or "object" of the claims. Thus, in a properly alleged fraud claim, the two-year statute of limitations prescribed by § 8.01-243 applies and the limitation period begins on the date of (i) the discovery of the fraud or (ii) the date on which the fraud reasonably should have been discovered through exercise of due diligence, whichever occurs first.

There is a genuine material factual dispute with respect to the date on which the alleged fraud was discovered or reasonably should have been discovered. The fraud allegation, distilled to its essence, is that Wyeth purposely concealed and misrepresented the risks of Prempro to doctors, consumers, and regulators. Thus, the fraud would have been discovered or reasonably should have been discovered no later than the date on which the risks of Prempro were discovered or reasonably should have been discovered. Plaintiff asserts that this date is July 9, 2002, when a major study by the Women's Health Initiative, a project of the National Institutes of Health, revealed that Prempro use may increase the risk of breast cancer.10 Defendant does not directly address this issue, but instead claims that the warning labels on Prempro were adequate to apprise plaintiff of the risks that Prempro could cause breast cancer and therefore the fraud claim is merit less. Thus, as the currently undeveloped record is inadequate to determine, as a matter of law, when plaintiff knew or reasonably should have known of the alleged fraud, summary judgment is appropriately denied on the fraud claim at this time.11

IV.

The final issue is undoubtedly the most significant obstacle defendant faces on the limitations issue. Plaintiff contends that the filing of a federal class action suit in the Northern District of Illinois tolled the Virginia limitations period for all claims.12 The Fourth Circuit considered and rejected a similar equitable tolling argument in 1999, before the Supreme Court of Virginia weighed in on the cross-jurisdictional effect of Virginia's tolling statute, Va.Code § 8.01-229(E)(1). The question presented here is whether the subsequent development of the case law indicates that the Fourth Circuit, in Wade v. Danek Medical, Inc., 182 F.3d 281, 287 (4th Cir. 1999), incorrectly predicted that the Supreme Court of Virginia would not allow tolling in a state court action following a federal class action suit. Because Welding, Inc. v. Bland County Service Authority, 261 Va. 218, 541 S.E.2d 909 (2001),13 refutes Wade's rationale and holding, it is clear that the Fourth Circuit's prediction was inaccurate and the statute of limitations in this case was tolled by the previous federal class action suit.

The analysis leading to this conclusion properly begins with the relevant provision of the Virginia Code, which provides that

Va.Code § 8.01-229(E)(1) (emphases added). In Wade, as there was no case law on point from the courts of Virginia, the Fourth Circuit was required to engage in the somewhat speculative inquiry into whether the Supreme Court of Virginia would allow cross-jurisdictional tolling where a personal injury plaintiff was a putative but unnamed class member in a previous federal class action suit. Wade predicted that the Supreme Court of Virginia would not grant equitable tolling in these circumstances. The Fourth Circuit panel reached this conclusion essentially for three reasons: (i) because Virginia "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"; (ii) because adoption of a cross-jurisdictional equitable tolling rule would result in a "flood of subsequent filings once a class action in another forum is dismissed"; and (iii) because Virginia's adoption of a cross-jurisdictional tolling rule would "render the Virginia limitations period effectively dependent on the resolution of claims in other jurisdictions, ... [a]nd Virginia has historically resisted such dependency." Id. at 287-88. Thus, the Fourth Circuit concluded that the Supreme Court of Virginia "would not adopt a cross-jurisdictional equitable tolling rule." Id. at 287. With respect to statutory tolling, the opinion merely notes, as an aside in a footnote, that "Virginia does have a statute providing for tolling of the limitations period in certain other situations." Id. at 286 n. 4. Importantly, Wade does not address the circumstances in which the tolling statute might apply.

Not long after the issuance of Wade, as if on cue, the Supreme Court of Virginia considered this question and ruled that § 8.01-229(E)(1) did, in fact, create a cross-jurisdictional tolling rule. The action in Welding was a breach of contract suit in a Virginia state court following a federal civil action in the Southern District of Western Virginia that was dismissed for improper venue by operation of a forum in issue. The Supreme Court of Virginia concluded that the sweeping language of § 8.01-229(E)(1) indicated that the General Assembly intended to allow tolling of prior suits arising "in both the state and federal courts." 541 S.E.2d at 912. And, the opinion further elaborates:

Id. Thus, Welding holds that application of the tolling statute is not limited to a specific jurisdiction, to a specific type of court, or, importantly, "to a specific type of action." Id.

Finally, defendant argues that even if tolling is generally available under Virginia law, it is inappropriate here as the class action suit "was a futile, sham class action" in which counsel did not move for class certification during the ten months in which the suit was pending. Def. Rep. at 7; see Def. Ex. 11 (docket sheets). Assuming, arguendo, the truth of these assertions, they are unavailing, as neither Virginia's tolling statute nor American Pipe and progeny admit of exceptions to the tolling rule for futility, let alone for sluggishness. See, e.g., Crown, Cork & Seal, 462 U.S. at 353-54, 103 S.Ct. 2392.14 Importantly, defendant appears to concede that plaintiff would have been a class member had class certification ultimately been granted in the prior suit, and indeed, it appears clear that the class definition in the prior suit's complaint—comprising "[a]ll persons who were physically injured as a result of taking Prempro"—would have included plaintiff.15 Thus, the prior class action suit operated to toll the applicable statute of limitations for the ten-month period between filing and voluntary dismissal. As this tolling period brings all of the alleged claims within § 8.01-243's two-year filing window on the basis of the undisputed facts of this case, defendant's motion for summary judgment must be denied.

V.

In sum, all of plaintiff's claims except her fraud claim would be time-barred in the absence of a cross-jurisdictional tolling rule applicable to federal class action suits. This is so because only fraud claims are subject to a discovery rule under Virginia law, and the undisputed record reflects that the non-fraud claims accrued prior to two years before filing. Nonetheless, the statute of limitations was tolled for all claims by operation of Virginia Code § 8.01-229(E)(1) as a result of a previously filed class action suit of which plaintiff was a putative class member. Accordingly, defendant's motion for summary judgment on the statute of limitations issue is appropriately denied in all respects.

An appropriate Order shall issue.