Wade v. Danek Medical, Inc.

Filed: July 14, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-2036

(CA-95-876-3)

Jeannette Wade, et al,

Plaintiffs - Appellants,

versus

Danek Medical, Inc., et al,

Defendants - Appellees.

O R D E R

The court amends its opinion filed July 2, 1999, as follows:

On page 5, first paragraph, lines 8-10 -- the last sentence is

corrected to read: “On February 22, 1995, the district court denied

class certification in Zampirri; on July 13, 1995, it did likewise

in Brown.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANNETTE WADE; EDWIN WADE,

Plaintiffs-Appellants,

v.

DANEK MEDICAL, INCORPORATED;

SOFAMOR, INCORPORATED; SOFAMOR-

DANEK GROUP, INCORPORATED;

SOFAMOR, S.N.C.; WARSAW

ORTHOPEDIC, INCORPORATED,

Defendants-Appellees,

and

AMERICAN ACADEMY OF ORTHOPEDIC

SURGEONS; NORTH AMERICAN SPINE

SOCIETY; SCOLIOSIS RESEARCH

No. 98-2036

SOCIETY; ZIMMER, INCORPORATED;

DANEK CAPITAL CORPORATION; DANEK

SALES CORPORATION; BUCKMAN

COMPANY, INCORPORATED; NOREX

USA, INCORPORATED; NATIONAL

MEDICAL SPECIALTY, INCORPORATED;

STUART, INCORPORATED; EDUARDO

LUQUE; PAUL MCAFEE; ROGER P.

JACKSON; DAVID BRADFORD; YVES

COTREL; JEAN DUBOUSSET; HARRY

SHUFFLEBARGER; R. GEOFFREY

WILBER; CHARLES E. JOHNSTON, II;

RICHARD ASHMAN, PH.D.; GARY

LOWERY; GEORGE RAPP; ENSOR

TRANSFELDT; HANSEN YUAN; JOHN A.

HERRING; JOHN P. BARRETT; THOMAS

WHITECLOUD, III; THOMAS A.

ZDEBLICK; TEXAS SCOTTISH RITE

HOSPITAL FOR CRIPPLED CHILDREN;

GICD-USA; GROUPE INTERNATIONAL

COTRELDUBOUSSET; ACROMED

CORPORATION, CHARTER NUMBER

614043; ACROMED CORPORATION,

CHARTER NUMBER 816942; ACROMED

RESEARCH AND DEVELOPMENT

CORPORATION; ACROMED SPINE

RESEARCH FOUNDATION,

INCORPORATED; ACROMED

INCORPORATED, CHARTER NUMBER

811415; ACROMED INCORPORATED,

CHARTER NUMBER 816943; ACROMED

HOLDING CORPORATION, CHARTER

NUMBER 811416; ACE MEDICAL

COMPANY; ADVANCED SPINE FIXATION

SYSTEMS, INCORPORATED; CROSS

MEDICAL PRODUCTS; DEPUY-MOTECH,

INCORPORATED; HOWMEDICA,

INCORPORATED AND ITS PARENT PFIZER,

INCORPORATED; SCIENTIFIC SPINAL;

SMITH & NEPHEW RICHARDS,

INCORPORATED; SYNTHES, U.S.A.;

SYNTHES, Incorporated; SYNTHES

NORTH AMERICA, INCORPORATED;

SYNTHES, A.G. CHUR; ADVANCED

BIOSEARCH ASSOCIATES; SPINAL

SCIENCE ADVANCEMENT FOUNDATION;

HEALTH INDUSTRY MANUFACTURER'S

ASSOCIATION; ORTHOPEDIC SURGICAL

MANUFACTURERS ASSOCIATION; SPINAL

IMPLANT MANUFACTURERS GROUP;

2

YOUNGWOOD MEDICAL SPECIALTIES,

INCORPORATED; HANSEN YUAN, M.D.;

RICHARD W. TREHARNE, Ph.D;

ERMON R. PICKARD; STUART MEDICAL

INCORPORATED, formerly known as

Stuart Drug and Surgical Supply,

Incorporated,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-95-876-3)

Argued: April 7, 1999

Decided: July 2, 1999

Before ERVIN, LUTTIG, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Ervin and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Thomas J. Byrne, CUMMINGS, CUMMINGS &

DUDENHEFER, New Orleans, Louisiana, for Appellants. Gary

Joseph Spahn, MAYS & VALENTINE, L.L.P., Richmond, Virginia,

for Appellees. ON BRIEF: John J. Cummings, III, Frank C. Duden-

hefer, Jr., CUMMINGS, CUMMINGS & DUDENHEFER, New

Orleans, Louisiana; William C. Lane, MASSELLI & LANE, P.C.,

Arlington, Virginia, for Appellants. Dabney J. Carr, IV, MAYS &

VALENTINE, L.L.P., Richmond, Virginia; George Lehner, PEPPER

HAMILTON, L.L.P., Washington, D.C., for Appellees.

3

OPINION

LUTTIG, Circuit Judge:

Jeannette and Edwin Wade appeal the district court's decision to

grant summary judgment against them in this diversity action on the

ground that the statute of limitations on their action was not equitably

tolled during the pendency of federal class actions against some of the

same defendants. Because we conclude that Virginia lacks an equita-

ble tolling rule, and that Virginia law on equitable tolling would gov-

ern in this case, we affirm.

I.

In 1985, appellant Jeannette Wade began to experience back pain.

In the following years, she underwent back surgery twice, but contin-

ued to suffer pain. Consequently, on October 26, 1992, Wade again

underwent surgery, this time to fuse two vertebrae in her spine. Dur-

ing the course of that surgery, doctors implanted a pedicle screw spi-

nal fixation device, manufactured by appellees Sofamor-Danek

Group, Incorporated, and its subsidiaries (collectively "Danek"). The

purpose of this device was essentially to act as an internal splint,

thereby facilitating the fusion of the vertebrae. Although the use of

the device for this purpose appears to have been common at the time

of Wade's surgery, this use was not listed on the label for the device

approved by the Food and Drug Administration.

The fusion surgery was a success; however, immediately after the

surgery, Wade began experiencing worsened pain in her back and leg.

She reported this pain to her doctors by no later than April 1993. In

addition, Wade subsequently developed arachnoiditis, which is an

inflammation of the membrane covering the spinal cord, and inconti-

nence. After consulting with a number of doctors, Wade had the spi-

nal fixation device removed on April 26, 1995.

Meanwhile, on December 30, 1993, a federal class action was filed

in the United States District Court for the Eastern District of Pennsyl-

vania against various pedicle screw spinal fixation device manufactur-

ers, including Danek. See Zampirri v. AcroMed, No. CA-93-7074

4

(E.D. Pa. filed Dec. 30, 1993). On April 14, 1994, a similar class

action was filed in the United States District Court for the Eastern

District of Louisiana. See Brown v. AcroMed, No. 94-1236 (E.D. La.

filed April 14, 1994). Wade and her husband, appellant Edwin Wade,

were putative, but not named, class members in each of the actions.

Pursuant to the multidistrict litigation statute, the Brown class action

was transferred to the Eastern District of Pennsylvania, where it was

consolidated with the Zampirri class action. On February 22, 1995,

the district court denied class certification in Zampirri; on July 13, 1995,

it did likewise in Brown.

On October 23, 1995, appellants filed this action in the United

States District Court for the Eastern District of Virginia against Danek

and a number of other manufacturers, individuals, and medical associ-

ations, alleging negligence, strict liability, conspiracy, and a host of

other state law claims. The case was briefly transferred to the Eastern

District of Pennsylvania, where the class actions had been consoli-

dated, before being remanded to the Eastern District of Virginia. After

the remand, defendants moved for summary judgment on the ground

that Virginia's two-year statute of limitations had run. See Va. Code

§ 8.01-243(A) (1998). On May 13, 1998, the district court granted

defendants' motions, rejecting plaintiffs' argument that the statute of

limitations should be equitably tolled for the period during which the

federal class actions were pending. See Wade v. Danek Med., Inc., 5

F. Supp. 2d 379, 384 (E.D. Va. 1998). Plaintiffs now bring this appeal

against Danek only, challenging the district court's decision to grant

summary judgment and also its decision to deny their motion for

reconsideration.

II.

Appellants first contend that, even if the district court correctly

concluded that the statute of limitations on their action should not be

equitably tolled during the pendency of the federal class actions, the

limitations period had nevertheless not lapsed by the time they filed

their action.1 Appellants' primary argument is that, although Wade's

_________________________________________________________________

1 At oral argument, counsel for appellants seemed to concede that the

limitations period would have lapsed in the absence of an equitable toll-

ing rule. Because appellants dispute this issue in their brief, however, we

briefly address it here.

5

initial injury -- namely, her worsening pain -- occurred immediately

after the surgery, and therefore more than two years before their

action was filed, Wade suffered a number of subsequent injuries --

such as her incontinence -- that did not arise until less than two years

before their action was filed. This argument, however, is squarely

foreclosed by Virginia law. In Virginia, "an injury is deemed to occur,

and the statute of limitations period begins to run, whenever any

injury, however slight, is caused by the negligent act, even though

additional or more severe injury or damage may be subsequently sus-

tained as a result of the negligent act." St. George v. Pariser, 253 Va.

329, 332 (1997); see also, e.g., Joyce v. A.C. and S., Inc., 785 F.2d

1200, 1205 (4th Cir. 1986) ("[U]nder Virginia law[,] the statute of

limitations does not accrue separately for each set of damages which

results from a wrongful act."); Caudill v. Wise Rambler, Inc., 210 Va.

11, 14-15 (1969) ("[T]he running of the statute is not postponed by

the fact that the actual or substantial damages do not occur until a

later date.").

Appellants briefly make two other points in support of their argu-

ment that the limitations period had not run on their right of action,

neither of them availing. First, appellants contend that, because Wade

had suffered similar back pain even before the implantation of the spi-

nal fixation device, their right of action should accrue not at the time

at which the device was implanted, but rather at the time at which the

worsening of Wade's pain was specifically linked to the implantation

of the device. It is well settled in Virginia, however, that the limita-

tions period begins running at the time of the initial injury, not at the

time of diagnosis or discovery. See Va. Code§ 8.01-230 (1998) (stat-

ing that limitations period runs "from the date the injury is sustained

. . . and not when the resulting damage is discovered"); Locke v.

Johns-Mansville Corp., 221 Va. 951, 959 (1981) (rejecting both date

of diagnosis and date of symptoms as accrual date in favor of date of

injury, even if symptoms do not manifest themselves for "weeks,

months or even years"). Because, as Wade herself admitted, Wade

had both experienced her symptoms and communicated them to her

doctors well over two years before the action was filed, it would have

been logically impossible for her injury to have occurred less than

two years before the action was filed.2

_________________________________________________________________

2 Virginia has enacted an exception to its general rule that the limita-

tions period begins running at the time of injury in the specific context

6

Second, appellants contend, albeit baldly, that appellees failed to

bear their burden of proving when Wade's injury occurred. In view

of Wade's own admissions regarding the time at which her symptoms

arose and the time at which she communicated them to her doctors,

however, we agree with the district court that appellants amply met

their burden of demonstrating when Wade's injury occurred "with a

reasonable degree of medical certainty." Locke, 221 Va. at 959. We

therefore conclude that, in the absence of an equitable tolling rule,

appellants' action would be barred by Virginia's two-year statute of

limitations.

III.

Because appellants' action would otherwise be barred by Virginia's

statute of limitations, we are squarely presented with the question

whether the statute of limitations in appellants' action should be equi-

tably tolled during the pendency of the Zampirri and Brown federal

class actions. In answering this question, we must, because this is a

diversity action, determine whether to look to federal or state law as

a source for any equitable tolling rule.3 On the one hand, the Supreme

Court has held that the statute of limitations in a subsequently filed

federal question action should be equitably tolled during the pendency

of a federal class action. See American Pipe and Constr. Co. v. Utah,

414 U.S. 538, 552-53 (1974) (applying equitable tolling rule to subse-

quent motion to intervene in action after denial of class certification

in that action); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-

54 (1983) (extending equitable tolling rule of American Pipe to subse-

quent independent individual action after denial of class certification

in separate action). On the other hand, Virginia has no statute provid-

ing that the statute of limitations in a subsequently filed state action

_________________________________________________________________

of product-liability actions involving recipients of breast implants, stat-

ing that the limitations period in those cases does not begin running until

the recipient communicates her symptoms to her doctor. See Va. Code

§ 8.01-249.7 (1998).

3 At oral argument, and in its reply brief, counsel for appellants seemed

to concede that state law would apply. Again, however, because appel-

lants dispute this issue at some length in their original brief, we address

it here.

7

should be equitably tolled during the pendency of either a state or a

federal class action, and no Virginia court has ever applied such a rule.4

As a threshold matter, appellants contend that this apparent conflict

between the federal and state rules on equitable tolling is illusory

because the Virginia Supreme Court would apply an equitable tolling

rule if presented with the issue. We disagree.

In predicting whether the Virginia Supreme Court would apply an

equitable tolling rule, we are mindful of the general principle that,

"[i]n trying to determine how the highest state court would interpret

the law, we should not create or expand that State's public policy."

Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254, 260

(4th Cir.), cert. dismissed, 119 S. Ct. 634 (1998); see also St. Paul

Fire & Marine Ins. Co. v. Jacobson, 48 F.3d 778, 783 (4th Cir. 1995)

("[T]he federal courts in diversity cases, whose function it is to ascer-

tain and apply the law of a State as it exists, should not create or

expand that State's public policy.").

In the absence of any relevant Virginia law, we naturally look to

the practices of other states in predicting how the Virginia Supreme

Court would rule. A number of other states -- some looking to the

Supreme Court's decision in American Pipe-- have adopted a rule

allowing equitable tolling during the pendency of a class action in

their own courts. See, e.g., First Baptist Church of Citronelle v.

Citronelle-Mobile Gathering, Inc., 409 So. 2d 727, 730 (Ala. 1981);

Rosenthal v. Dean Witter Reynolds, Inc., 883 P.2d 522, 531-32 (Colo.

Ct. App. 1994), aff'd in part and rev'd in part on other grounds, 908

P.2d 1095 (Colo. 1995); Grimes v. Housing Auth. of the City of New

Haven, 698 A.2d 302, 306 (Ct. 1997); Levi v. University of Hawaii,

_________________________________________________________________

4 Virginia does have a statute providing for tolling of the limitations

period in certain other situations. See Va. Code § 8.01-229 (1998). Fur-

ther, the Virginia Supreme Court has stated as follows: "In light of the

policy that surrounds statutes of limitation, the bar of such statutes

should not be lifted unless the legislature makes unmistakably clear that

such is to occur in a given case. Where there exists any doubt, it should

be resolved in favor of the operation of the statute of limitations." See

Burns v. Board of Supervisors, 227 Va. 354, 359 (1984) (emphasis

added).

8

679 P.2d 129, 132 (Hawaii 1984); Pope v. Intermountain Gas Co.,

646 P.2d 988, 1010 n.28 (Idaho 1982); Lucas v. Pioneer, Inc., 256

N.W.2d 167, 180 (Iowa 1977); Municipal Auth. of Westmoreland

County v. Moffat, 670 A.2d 747, 749 (Pa. Commonw. Ct. 1996);

American Tierra Corp. v. City of W. Jordan, 840 P.2d 757, 761-62

(Utah 1992). It is not particularly surprising that so many states have

adopted such a rule, for a state has a similar interest in applying equi-

table tolling during the pendency of a class action in its own courts

as does the federal government in applying equitable tolling during

the pendency of a class action in federal court: namely, serving the

purpose of the state's class action rule (many of which are identical,

or virtually identical, to Federal Rule 23) by deterring "protective" fil-

ings of potentially redundant individual suits during the pendency of

a class action that may ultimately resolve those suits, and thereby pro-

moting the efficiency and economy of the state's class action proce-

dures.

This case, however, presents a slightly different question: namely,

whether a state court would engage in equitable tolling during the

pendency of a class action in another court -- in this case, a federal

court in another jurisdiction. Although a number of states have

allowed equitable tolling for class actions in their own courts, only a

very few have even addressed the question of "cross-jurisdictional"

equitable tolling, much less allowed such tolling. See Portwood v.

Ford Motor Co., 701 N.E.2d 1102, 1104-05 (Ill. 1998) (refusing to

allow cross-jurisdictional equitable tolling), cert. denied, 119 S. Ct.

1046 (1999);5 Bell v. Showa Denko K.K., 899 S.W.2d 749, 757-58

(Tex. Ct. App. 1995) (same in the context of a personal-injury class

action);6 but see Staub v. Eastman Kodak Co., 1999 WL 183796, at

*12 (N.J. Super. Ct. App. Div. April 5, 1999) (allowing cross-

jurisdictional equitable tolling, citing prior state tolling cases);

Maestas v. Sofamor Danek Group, Inc., 1999 WL 74212, at *5 (Tenn.

Ct. App. Feb. 16, 1999) (same in pedicle screw case, citing prior state

tolling case); Lee v. Grand Rapids Bd. of Educ., 384 N.W.2d 165, 168

_________________________________________________________________

5 Illinois courts do allow intrajurisdictional equitable tolling, however.

See Steinberg v. Chicago Med. School, 371 N.E.2d 634, 645 (Ill. 1977).

6 Texas courts, too, have recognized intrajurisdictional equitable toll-

ing. See Grant v. Austin Bridge Constr. Co., 725 S.W.2d 366, 370 (Tex.

Ct. App. 1987).

9

(Mich. Ct. App. 1986) (same, without elaboration); Hyatt Corp. v.

Occidental Fire & Cas. Co., 801 S.W.2d 382, 389 (Mo. Ct. App.

1990) (same, again without elaboration); see also In re "Agent

Orange" Prod. Liab. Litig., 818 F.2d 210, 213 (2d Cir. 1987) (refus-

ing to read cross-jurisdictional equitable tolling rule into Hawaii law);

Barela v. Showa Denko K.K., 1996 WL 316544, at *4 (D.N.M. 1996)

(same for New Mexico law).

Having considered these cases -- most of which do not discuss the

issue in any detail -- we conclude that the Virginia Supreme Court

would not adopt a cross-jurisdictional equitable tolling rule. First, and

most importantly, the Commonwealth of Virginia simply has no inter-

est, 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.7 Second,

if Virginia were to adopt a cross-jurisdictional tolling rule, Virginia

would be faced with a flood of subsequent filings once a class action

in another forum is dismissed, as forum-shopping plaintiffs from

across the country rush into the Virginia courts to take advantage of

its cross-jurisdictional tolling rule, a rule that would be shared by only

a few other states. See Portwood, 701 N.E.2d at 1104. Although, in

the absence of a cross-jurisdictional tolling rule, in-state plaintiffs

would engage in "protective" filing before the statute of limitations

expires, thus leading to some increase in the amount of litigation,8 any

such increase would presumably be smaller than the increase in fil-

ings that would result from a cross-jurisdictional tolling rule, because

out-of-state plaintiffs would simply engage in "protective" filing in

their own states' courts (provided their states lacked cross-

jurisdictional tolling rules themselves). See id . at 1105. Third, if Vir-

ginia were to allow cross-jurisdictional tolling, it would render the

Virginia limitations period effectively dependent on the resolution of

claims in other jurisdictions, with the length of the limitations period

varying depending on the efficiency (or inefficiency) of courts in

_________________________________________________________________

7 Indeed, Virginia itself has no class action provision analogous to Fed-

eral Rule 23.

8 Of course, once a "protective" filing has been made, the state court

could always stay proceedings in that action pending the resolution of the

class action in the other jurisdiction, thus minimizing the effect of any

duplicative litigation.

10

those jurisdictions. See id. at 1104. And Virginia has historically

resisted such dependency. For these reasons, we reject appellants'

argument that the Virginia Supreme Court would adopt a cross-

jurisdictional equitable tolling rule.9

IV.

Having concluded that Virginia lacks an equitable tolling rule, and

that the Virginia Supreme Court would not adopt such a rule, we are

faced with a square conflict between the federal rule in favor of equi-

table tolling, on the one hand, and the state rule against equitable toll-

ing, on the other. We therefore must determine whether we, as a

federal court sitting in diversity, should resort to federal or state law

on equitable tolling under Erie and its progeny. The Supreme Court

has never directly addressed this question. However, not long after

Erie, the Court held that, at least in cases (like this one) in which the

choice of state or federal rule would be "outcome-determinative," it

_________________________________________________________________

9 In addition, we believe that, even were the Virginia Supreme Court

to adopt a cross-jurisdictional tolling more generally, it would not apply

such a rule in a case such as this one, at least as against many of the

defendants not named in this appeal, because the federal class actions did

not place those defendants on sufficient notice of appellants' claims. One

of the purposes of a statute of limitations is to put a defendant on notice

of the claims against him within the specified period. See, e.g., Order of

R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-

49 (1944). For an equitable tolling rule to comport with this purpose, the

class action plaintiff must "notif[y] the defendants not only of the sub-

stantive claims being brought against them, but also of the number and

generic identities of the potential plaintiffs who may participate in the

judgment." American Pipe, 414 U.S. at 555. At least two state courts

have concluded that equitable tolling is inappropriate when notice has

not been provided. See Jolly v. Eli Lilly & Co., 751 P.2d 923, 936-38

(Cal. 1988) (en banc); Bell, 899 S.W.2d at 758. In this case, many of the

defendants, if not a majority, were not named in the federal class actions,

as counsel for appellants conceded at oral argument, and therefore those

defendants did not receive sufficient notice within the limitations period

to justify equitable tolling. See Adams, 7 F.3d at 719. In addition, it

appears that some of the types of claims in appellants' action, notably the

conspiracy claims, were not brought in the federal class actions, although

the claims may have been sufficiently similar to serve as notice.

11

would look to state law in order to determine the governing statute of

limitations. See Guaranty Trust Co. v. York, 326 U.S. 99, 109-12

(1945).10 Several decades later, the Court extended that holding, rea-

soning that it would look to state law not just for the applicable statute

of limitations, but also for any rule, such as a service rule, that consti-

tuted "an integral part of the state statute of limitations." Walker v.

Armco Steel Corp., 446 U.S. 740, 753 (1980); see also Ragan v.

Merchants Transfer & Warehouse Co., 337 U.S. 530, 534 (1949)

(applying similar state service rule). Finally, and perhaps most criti-

cally for our current inquiry, in two cases in which the subsequent

action was a federal question action based on § 1983, which lacks a

specific limitations period and therefore "borrows" its limitations

period from state law, the Court looked to state law for the applicable

equitable tolling rule. See Chardon v. Soto, 462 U.S. 650, 660-62

(1983) (applying state rule of equitable tolling during pendency of

federal class action); Board of Regents v. Tomanio, 446 U.S. 478,

484-86 (1980) (applying state rule against equitable tolling during

pendency of state individual action).

Although the subsequent actions in Tomanio and Chardon were

federal question actions, rather than diversity actions, we read those

cases, together with Walker, to stand for the proposition that, in any

case in which a state statute of limitations applies-- whether because

it is "borrowed" in a federal question action or because it applies

under Erie in a diversity action -- the state's accompanying rule

regarding equitable tolling should also apply. Most of the other fed-

eral courts to have considered the issue in the diversity context have

_________________________________________________________________

10 In Hanna v. Plumer , 380 U.S. 460 (1965), the Supreme Court sug-

gested that, in cases in which the choice of federal or state rule was

"outcome-determinative" -- at least in those cases in which the federal

rule was judicially created -- the question whether to apply federal or

state law additionally turned on whether the simultaneous application of

the federal rule in diversity actions and the state rule in state court

actions would lead to forum shopping or the inequitable administration

of the laws -- the twin evils that the Erie rule was designed to avoid. See

id. at 468. In this case, however, there can be no doubt that the applica-

tion of a more generous equitable tolling in diversity actions than in state

court actions would lead at least to forum shopping, and possibly also to

inequitable administration of the laws.

12

so ruled. See, e.g., "Agent Orange", 818 F.2d at 213 (reasoning that,

because state law did not provide for equitable tolling, "it is doubtful

that either American Pipe or Crown, Cork can be treated as applicable

precedent," and citing Chardon and Tomanio); In re Norplant Contra-

ceptive Prods. Liab. Litig., 173 F.R.D. 185, 188 n.10 (E.D. Tex.

1997) (holding that "application of an equitable tolling rule in a diver-

sity action is an issue of state law"); West Haven School Dist. v.

Owens-Corning Fiberglas Corp., 721 F. Supp. 1547, 1554 (D. Conn.

1988) (noting that "state tolling law controls" and, citing Tomanio,

that "the question must be resolved by reference to state, not federal,

tolling law"); cf. Carter v. Washington Metro. Area Transit Auth., 764

F.2d 854, 855 (D.C. Cir. 1985) (reasoning that "[u]nder the Erie doc-

trine . . . the relevant state law controls whether, in a statute-of-

limitations case before a federal court on diversity jurisdiction, a

pending [individual action] tolls the statute of limitations").11

_________________________________________________________________

11 A minority of the federal courts to have considered the issue whether

to apply a federal or state equitable tolling rule have done so by weighing

the importance of the policy implicated by the federal rule against the

importance of the policy of applying the state rule uniformly. See Vaught

v. Showa Denko K.K., 107 F.3d 1137, 1147 (5th Cir.) (holding that "fed-

eral interest" in American Pipe rule "does not trump the Texas tolling

rule"), cert. denied, 522 U.S. 817 (1997); Barela, 1996 WL 316544, at

*4 (rejecting argument that "any overriding federal interest in class

actions mandates application of American Pipe in diversity cases in the

absence of applicable state tolling law"); but see Adams Pub. Sch. Dist.

v. Asbestos Corp., 7 F.3d 717, 719 (8th Cir. 1993) (reasoning that "fed-

eral interest" in American Pipe rule was "sufficiently strong to justify

tolling in a diversity case when the state law provides no relief"). In bal-

ancing the relative interests of the federal and state systems in applying

their respective rules, those courts have relied, either explicitly or implic-

itly, on the Supreme Court's decision in Byrd v. Blue Ridge Rural Elec.

Coop., Inc., 356 U.S. 525 (1958). Even assuming that Byrd retains vital-

ity in the wake of the Supreme Court's subsequent decision in Hanna,

which appeared to revert to a modified version of the York "outcome-

determinative" test in cases in which the federal rule was judicially cre-

ated, we agree with the Vaught and Barela courts that any federal interest

in applying the American Pipe rule -- namely, in reducing potentially

redundant individual filings -- is insufficiently strong to justify displac-

ing a state rule to the contrary. We therefore conclude that, even under

the test outlined in Byrd, Virginia's rule against equitable tolling, rather

than the federal rule articulated in American Pipe, would apply.

13

Appellants make two further arguments that the federal equitable

tolling rule should apply in their case, both of which we reject. First,

appellants contend that the federal equitable tolling rule established

in American Pipe was based on, and thus implicitly inheres in, Rule

23, the federal rule governing class actions, and therefore that Rule

23 directly conflicts with, and thus trumps, any contrary Virginia rule

against equitable tolling. See Hanna, 380 U.S. at 463-64 (holding that

validly enacted federal rule of civil procedure trumps directly con-

flicting state rule).12 However, the Supreme Court refused to accept

a virtually identical argument in Walker. There, the Court rejected the

argument that Rule 3, the federal rule stating that a civil action com-

mences at the time at which the complaint is filed, implicitly contains

a rule tolling the statute of limitations until service is effected and

therefore trumps a conflicting state rule requiring service within a

specified period after the statute of limitations has run. See Walker,

446 U.S. at 750-51. Likewise, in this case, we reject the argument that

Rule 23 -- which on its face merely establishes the procedures for

pursuing a class action in the federal courts -- implicitly contains an

equitable tolling rule and thereby trumps a state rule against such

tolling.13 Because a "direct conflict between the Federal Rule and the

state law" cannot exist "in the absence of a federal rule directly on

point," the Hanna rule cannot apply. Id.; see also id. at 750 n.9 ("The

Federal Rules should be given their plain meaning. If a direct colli-

sion with state law arises from that plain meaning, then the analysis

developed in Hanna v. Plumer applies.").

Second, appellants contend that the application of the federal equi-

table tolling rule is mandated by our prior decision in Atkins v.

Schmutz Mfg. Co., 435 F.2d 527 (4th Cir. 1970) (en banc). In Atkins,

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12 Then-Justice Rehnquist appears to have taken the view that the rule

of American Pipe implicitly inhered in Rule 23 in his dissent in Chardon.

See Chardon, 462 U.S. at 667-68 (Rehnquist, J., dissenting) ("If the law

of [a] particular State was that the pendency of a class action did not toll

the statute of limitations as to unnamed class members, there seems little

question but that the federal rule of American Pipe would nonetheless be

applicable.").

13 We do recognize, however, that the equitable tolling rule established

in American Pipe was justified on the basis of many of the same policies

that also underlie Rule 23.

14

we held, apparently applying federal law, that the statute of limita-

tions on a diversity action in Virginia federal court could be equitably

tolled during the pendency of that same action in another federal

court, which was eventually dismissed. See id. at 527. In view of our

foregoing analysis of the Supreme Court's intervening decisions in

Chardon, Tomanio, and Walker, however, we doubt that the principle

of Atkins can be extended to this case. Indeed, we note that one of our

sister circuits has refused to apply the rule of Atkins on precisely the

ground that it is inconsistent with Walker. See Cook v. G.D. Searle

& Co., 759 F.2d 800, 804 (10th Cir. 1985).

In sum, we conclude that, under Erie and its progeny, Virginia's

rule against equitable tolling, rather than the federal rule articulated

in American Pipe, would apply in this case, and therefore affirm the

district court's grant of summary judgment against appellants on the

ground that the Virginia statute of limitations had run.

CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED

15