A panel of federal judges has transferred 89 Taxotere lawsuits to the US District Court for the Eastern District of Louisiana. In New Orleans, the individual personal injury claims will be consolidated for pre-trial proceedings. The Honorable Kurt D. Engelhardt* has been selected to preside over the newly-coordinated Multi-District Litigation (MDL).
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In a transfer order filed on October 4, 2016, the US Judicial Panel on Multi-District Litigation (JPML) explained the decision by referring to “common questions of fact,” allegations shared by the lawsuits.
As the JPML notes, each lawsuit claims that Taxotere, a chemotherapy agent often prescribed to breast cancer patients, causes permanent hair loss. Sanofi was aware of this potential side effect, the women continue, but failed to warn patients of the risk. The final shared question of fact cited by the Panel involves the marketing of Taxotere. In their lawsuits, breast cancer patients say the company “marketed Taxotere as more effective than other chemotherapy drugs when other drugs were equally effective without the associated permanent hair loss.”
In light of these shared factual allegations, consolidation appears a natural option for the Taxotere litigation.
For one thing, each lawsuit is likely to follow a similar path through discovery, the phase of civil actions in which parties demand relevant documents from one another. Plaintiffs hope that crucial evidence can be gleaned from internal corporate documents on the design, testing, manufacturing, marketing and labeling of Taxotere. Instead of requesting these documents separately, the Plaintiffs will now be able to make coordinated requests for relevant evidence. This reduces the litigation’s burden on the court system, while providing the women opportunities to pool their intellectual resources.
Consolidation will also promote greater consistency across the Taxotere litigation, which many legal experts expect to grow in coming months. As separate personal injury actions, the lawsuits would remain scattered in disparate federal courts, under the guidance of isolated federal judges. The risk, of course, is that two judges could make conflicting rules on the same issue, creating confusion and raising difficult legal questions. With the cases now consolidated under the guidance of Chief Judge Kurt D. Engelhardt, there is no possibility of inconsistent rulings.
This is not a class action. Despite being consolidated, each lawsuit will remain an individual personal injury action. Each woman will be able to control the course of her own lawsuit, making private decisions that will surely entail very personal outcomes.
The choice of jurisdiction, it appears, was relatively simple, although numerous options were suggested initially.
In their original request for consolidation, a group of 33 Plaintiffs floated 2 distinct alternatives, either the Eastern District of Louisiana or the Southern District of Illinois. In subsequent filings, additional Plaintiffs proposed a wide array of appropriate choices, from the District of Minnesota to the Northern District of California. No one jurisdiction “emerge[d] as a clear focal point,” according to the JPML. But responses from Sanofi-Aventis, the Defendant, likely tipped the conversation in Louisiana’s favor.
Sanofi, who agreed that centralization was appropriate, threw support behind the New Orleans court, despite arguing vigorously for its own preferred choices, the District of Colorado and the District of New Jersey, where the company maintains a US headquarters.
Ten Taxotere lawsuits are already pending in the US District Court for the Eastern District of Louisiana, the JPML reports.
While the transfer order only applies explicitly to 33 lawsuits, another 56 actions, pending in 25 different federal courts, are expected to be transferred to New Orleans as well. This will be the likely fate of any lawsuits filed over Taxotere’s link to permanent hair loss in the future. In the coming months, any claim submitted to a federal court can be reassigned to the Eastern District of Louisiana as a “tag-along” action and consolidated in the MDL.
The formation of an MDL can accelerate the speed of legal proceedings. After discovery has been completed, and the lawsuits are prepared for trial, MDL Judges often select several cases for an initial slate of trials. These “bellwether” trials are quite real, a chance for Plaintiffs to air their evidence and arguments before an actual jury. The jury’s final verdict, however, only applies to the individual Plaintiff in question. But the information gained in court can inform on-going settlement negotiations.
Most consolidated cases will reach a resolution in the MDL court. Those that do not can be transferred back, or remanded, to their original court for trial proceedings or further settlement talks.
*November 15, 2016 – This information has been updated to reflect the selection of Chief Judge Kurt D. Engelhardt to preside over the Taxotere MDL in Louisiana. The coordinated litigation was reassigned from District Judge Lance M. Africk to Chief Judge Engelhardt on October 5, 2016.