At least 50 women have filed lawsuits against French pharmaceutical conglomerate Sanofi-Aventis, claiming the company’s chemotherapy medication Taxotere causes permanent hair loss.
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While each woman has leveled similar allegations against Sanofi, the cases are still disconnected and individual, isolated in at least 16 different federal courts. That may change in the coming weeks.
Two of the women have now made a call for their lawsuits to be brought together under a single court’s jurisdiction. On July 22, 2016, two Plaintiffs asked a panel of federal judges to create a Multi-District Litigation for the cases, Reuters reports. They hope to have the lawsuits sent to the US District Court for the Eastern District of Louisiana, a federal court in New Orleans.
A panel of influential federal judges has decided that consolidation is appropriate for the growing Taxotere litigation. On October 4, 2016, the US Judicial Panel on Multi-District Litigation ordered that all Taxotere lawsuits filed in federal court will be transferred to a single court in New Orleans for coordinated pre-trial proceedings.
The litigation, now listed as MDL No. 2740 – In Re: Taxotere (Docetaxel) Product Liability Litigation – currently numbers 89 separate personal injury lawsuits. Soon, these lawsuits will be sent to the US District Court for the Eastern District of Louisiana. US District Judge Lance M. Africk has been picked to preside over the consolidated claims.
The actions have been filed by women who never regrew their hair after receiving Taxotere, a chemotherapy drug frequently prescribed to breast cancer patients.
On September 29, 2016, the US Judicial Panel on Multi-District Litigation (JPML) heard oral arguments over the latest slate of proposed MDL proceedings. The growing Taxotere litigation, provisionally named MDL No. 2740 – In Re: Taxotere (Docetaxel) Products Liability Litigation – was on the docket, according to court records.
In Washington, D.C., defense attorneys for Sanofi-Aventis and lawyers representing at least two women who have filed Taxotere lawsuits gathered before a panel of federal judges to debate the issue of creating a Taxotere MDL. While transcripts of the hearings have not been made available, Sanofi has made it clear that centralization is an appropriate way of handling the lawsuits.
Where to transfer the cases, however, is a point of contention. Plaintiffs have asked the JPML to send their lawsuits to New Orleans. Sanofi favors a federal court in New Jersey. The company’s US headquarters is located in Bridgewater, New Jersey. Of the top 5 largest pharmaceutical companies in the world, 4 have their US headquarters or major research and development divisions based in New Jersey – not surprising since the state offers hundreds of millions of dollars in tax subsidies to major corporations.
Because both sides in the dispute agree that MDL is a good idea, attorneys expect the Judicial Panel on Multi-District Litigation to establish a consolidated litigation. The location of those centralized proceedings is, for now, an open question. Attorneys expect the Panel’s decision to be announced around one week after oral arguments.
In their lawsuits, women claim that Sanofi lied about Taxotere’s effectiveness, while withholding evidence that the chemo drug can cause permanent hair loss. The drug’s warning label was only recently updated with references to persistent alopecia, although studies had identified the risk more than a decade ago.
There’s no word yet from the Judicial Panel on Multi-District Litigation on whether or not the request will be granted. But if it is, all 50 lawsuits will be “consolidated” in the New Orleans court under a single federal judge. Lawsuits filed afterward would also likely be transferred to Louisiana, where the cases would progress through pre-trial proceedings as a bloc. Depending on the outcome of oral arguments, a jurisdiction other than Louisiana could be chosen. Alternatively, the JPML could decide that Taxotere lawsuits are inappropriate for consolidation and simply allow the cases to proceed individually in their original courts.
No. Multi-District Litigation (MDL) isn’t the same as class action.
In class actions, small groups of people hope to represent a much broader “class” of individuals in court. It’s a common legal technique when thousands of people have been injured in a very similar – and relatively minor – way by the same defendant.
In the context of class action, “injured” doesn’t usually mean physical injury. Representative plaintiffs in a class action will often argue that a company’s policies cheated them, and numerous other people, out of a relatively small amount of money. Class action is a way of banding together over these small claims, and sharing the costs of litigation among thousands of plaintiffs.
The trade-off for class members is losing control over the case. Representative plaintiffs make all the major decisions, including whether to accept a settlement offer or take their lawsuit to trial.
Multi-District Litigation doesn’t involve a similar trade-off. If a Taxotere MDL is created, each woman’s lawsuit will remain an individual personal injury lawsuit. Every Plaintiff will retain complete control over the course of their own case. But for pre-trial proceedings, like the filing of motions (in which Defendants usually try to have the cases dismissed entirely) and discovery, Plaintiffs’ attorneys will be able to work together in a way that wasn’t formerly possible.
In most MDLs, a group of attorneys is appointed by the court to lead the litigation. This “Plaintiffs’ Steering Committee” is responsible for developing a plan of attack, devising legal arguments and identifying the crucial pieces of evidence that will be demanded during the discovery phase. Another group of lawyers will be appointed to interface with the court itself, handling largely administrative matters and informing Plaintiffs of new developments.
Once the evidence is gathered, and the legal terrain is fully mapped, most MDL judges select a case or two to proceed to trial. These “bellwether” trials, which are heard in front of a jury, serve to inform both sides in the dispute of where they stand. Did your arguments convince the jury? How did the evidence go over? Because the jury’s decision only applies to the specific case that went to trial, the other plaintiffs can use the outcome to make informed decisions about their next step. Maybe a settlement offer becomes more attractive, or taking the case to trial appears more likely to produce a favorable resolution.
Cases that aren’t “resolved” in the MDL court can be remanded to their original court for further proceedings, although that rarely happens in practice. The vast majority of lawsuits consolidated in a central court end there.
Of course, none of this has happened yet. The Taxotere litigation is still in its very early stages, with only 50 lawsuits filed so far. Legal experts, however, believe that hundreds of other women could be eligible to file suit. Breast cancer patients who experienced permanent hair loss after receiving Taxotere have been urged to contact an experienced attorney immediately. Multi-District Litigation could change the legal landscape considerably – and time may be limited.