One recent night, three-plus months into our ongoing solitary confinement, we found ourselves laughing very hard at a classic Road Runner cartoon. We especially loved the moment when Wile E. Coyote stepped off a cliff then froze in mid-air as knowledge of his fate dawned on him. That image popped into our mind as we read today’s case, in which plaintiffs learned that the incautious testimony of their own expert was fatal to hundreds of their claims. The case, In re Taxotere (Docetaxel) Prods. Liab. Litig., 2020 WL 3487594 (E.D. La. June 1, 2020) is the latest in a series of great decisions from the Taxotere MDL and the second involving the same expert. (You can read our earlier posts here and here and here.) A shout-out to Shook Hardy’s Harley Ratliff, who is racking up these victories.
Plaintiffs in this MDL allege that the defendant’s breast cancer drug caused them to suffer permanent alopecia (hair loss) and that the defendant did not adequately warn of this risk. According to the plaintiffs’ expert, whom we have previously described as a “ubiquitous plaintiffs’ regulatory mouthpiece,” the duty to provide such warnings was triggered on December 15, 2006. On that date, in a presentation at a major breast cancer conference, a prominent doctor identified a statistically significant link between the drug and permanent alopecia. But fourteen hundred plaintiffs in this MDL took the defendant’s drug before December 15, 2006. The defendant moved for summary judgment on every one of those plaintiffs’ failure-to-warn claims, based on the plaintiffs’ expert’s opinion that there was no duty to warn before that date.
Now here’s the best part: the plaintiffs asked the court to “disregard” their own expert’s opinion. They argued that the opinion was “tailored” to the claims of three bellwether plaintiffs who took the drug after December 15, 2006. (In other words, had the expert realized that so many plaintiffs had taken the drug before December 15, 2006, his “tailoring” would have fashioned a different start date for duty to warn.) The plaintiffs argued that the expert’s opinion was “case-specific” to the three bellwether cases and shouldn’t be considered in connection with the summary judgment motion.
As before, the court wasn’t buying it. It again held, “These assertions fall flat. For months now, the parties and this Court have discussed the filing of this [omnibus] motion. The parties agreed on the briefing schedule. Plaintiffs had ample time and opportunity to identify and present expert evidence disputing the damaging testimony from [their regulatory expert]. Yet Plaintiffs failed to do so.” Taxotere, 2020 WL 3487594 at *2.
The court held that, under Louisiana law, the plaintiffs had “failed to create an issue of fact regarding whether Defendants . . . had a duty to warn prior to December 15, 2006,” given that their “own expert testified that Defendants’ duty arose on this date.” Id. at *3. (Because the laws of numerous jurisdictions applied to the claims at issue, the court analyzed only Louisiana law for purposes of the decision, reserving decisions on cases governed by other states’ laws.) According to the court, the plaintiffs had pointed to “scant evidence” of earlier knowledge on the part of the defendant, “an issue on which Plaintiffs carry the burden of proof” – that “rather than provide the Court with an unequivocal expert opinion that creates an issue of fact on the scope of Defendants duty to warn, Plaintiffs point[ed] the Court only to equivocal evidence in the record, all of which leaves the court guessing.” Id. at *4. Because the plaintiffs had failed to create an issue of fact, the court granted summary judgment on all cases to which Louisiana law applied.
We absolutely love this stuff. We spend much of our professional life fighting rampant abuses by MDL plaintiff lawyers, and we relish the “comeuppance” of plaintiffs’ own tactics sinking their claims. The court asked the parties to provide a chart defining the relevant standard for all of the other jurisdictions at issue, and we will keep you posted on any rulings that result. Meanwhile, stay safe out there.