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A Philadelphia judge, ruling in a case of first impression, has refused to apply the doctrine of equitable tolling to a plaintiff’s diet drug suit filed in state court. The case, Johnson v. American Home Products Corp., involved the question whether a class action filed in Pennsylvania on behalf of all diet drug users in the commonwealth that was merged into a U.S. District Court action, Brown v. American Home Products, tolls the statute of limitations in individual actions filed in state court. Philadelphia Common Pleas Judge Norman Ackerman said it does not, relying on a Superior Court case that said the doctrine of equitable tolling had never been applied to a case in the commonwealth and warned about the risks of doing otherwise. Therefore, Ackerman said, the plaintiff’s action, filed more than two years after she was diagnosed with a heart condition related to her use of diet drugs, was barred by the statute of limitations. The plaintiff, Andrea Johnson, said that on March 30, 1999, she was diagnosed with valvular regurgitation and was told that the condition was related to her use of the diet drugs fenfluramine and phentermine. She filed suit against American Home Products and Wyeth-Ayerst Laboratories Inc. Wyeth filed a motion for summary judgment, claiming that the statute of limitations had expired. Ackerman said Johnson filed her suit on March 5, 2002, more than two years after she learned the source of her heart condition. Johnson argued that the doctrine of equitable tolling applied to her case, preventing summary judgment. Ackerman said the diet drugs Pondimin, known generically as fenfluramine, and Redux, or dexfenfluramine, were withdrawn from the market in September 1997 by American Home Products. A class action was soon filed in Philadelphia Common Pleas Court, In re Pennsylvania Diet Drugs Litigation. Another case soon followed, Brown, which combined the claims of class members in state and federal court actions across the country into one action. The Pennsylvania diet drug case was one of those merged into Brown. Johnson opted out of the Brown case, Ackerman said, and filed the instant case. Any statute of limitations was equitably tolled, Johnson said, because she was a member of the Pennsylvania diet drug class, which was filed on behalf of “all diet drug users in the state of Pennsylvania.” Johnson said her statute of limitations began to run on the day she opted out of the Brown class, March 29, 2000. Wyeth argued that Johnson, a resident of Alabama, was not a member of the Pennsylvania class action and that her personal injury claim was never included in that action. It said equitable tolling only applies when the plaintiff who filed a subsequent individual claim could have been a member of the class and when the claims in both the individual suit and the class action are the same. Johnson clearly could not have been a member of the class in the Pennsylvania diet drug action, the defense argued, because it was filed on behalf of only Pennsylvania residents who used the drugs and asserted counts for medical monitoring. Johnson did not assert a medical monitoring claim, Wyeth argued. Brown would only toll the statute of limitations in Johnson’s case, Wyeth argued, if Pennsylvania courts recognized the doctrine of cross-jurisdictional equitable tolling, and they do not. Ackerman found merit in the defense’s arguments. The Superior Court in Ravitch v. Price Waterhouse held that an individual action filed in federal court does not toll the statute of limitations in state court. However, the court noted the lack of case law on the question whether a class action filed in another state’s court or in federal court tolls the statute of limitations for an individual action filed in a Pennsylvania court. Ackerman found guidance in another portion of the Ravitch decision, which warned about the complications of adopting a cross-jurisdictional tolling rule: “Unless all states simultaneously adopt the rule of cross-jurisdictional class action tolling, any state which independently does so will invite into its court a disproportionate share of suits which the federal courts have refused to certify as class actions after the statute of limitations has run.” Johnson argued that public policy should allow equitable tolling under the facts of her case and that she did fit the status of a class member under Brown as an individual who ingested the diet drugs in question. But Ackerman rejected those contentions. “Even if this court decided that the Brown class action could be used here to toll plaintiff’s claims, Brown was not filed until Oct. 12, 1999, … and plaintiff affirmatively opted out of the Brown class on March 29, 2000,” Ackerman said. “Thus, any tolling which could be attributable to Brown would not have extended plaintiff’s limitations period enough to prevent summary judgment.”

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