Photo of Rachel B. Weil

Ok, we confess:  we googled “auld lang syne.”  We are told that its literal meaning is “old times since,” interpreted to mean “for the sake of old times.”  And so, for auld lang syne, in fond remembrance of good decisions on which we reported here and here and here and here, we end the year with one final good decision from the Taxotere MDL.

More about that in a minute.  Indulge us:  we want to talk a little about gratitude, on escalating levels.  First, the silly stuff — stuff that makes us smile or makes us a little nuts but always reminds us that we’re pretty lucky:  we are grateful that the furniture delivery truck hadn’t traveled more than a few miles away when the leg fell off of the new living room chair today.  We are grateful that UPS found a contactless solution to wine delivery.  We are grateful that we found the perfect rescue cat for the very particular Drug and Device Law Dowager Countess (even if said cat is in a PetSmart adoption cage two hours away).  We are grateful for Schitt’s Creek, which improbably has worked its way into our soul.  And we are grateful that, advanced age notwithstanding, we were nimble enough to jump into our moving car when we got out without putting it in “park” (don’t ask).   Then there’s the much bigger stuff:  we are grateful that we exit 2020 with our job and home — we know that many have not been so fortunate — and we are grateful for the doctors, nurses, and health care workers who have been on the front lines for almost ten months.  Finally,  the only thing that truly matters:  we are grateful for our health and for the health of our loved ones on the cusp of the long-awaited vaccine.

Today’s case, In Re Taxotere (Docetaxel) Prod. Liab. Litig., 2020 WL 7480626 (E.D. La. Dec. 18, 2020)  may not rise to the level of “gratitude,” but we’re happy to able to report it.  The movant is the second bellwether plaintiff in the Taxotere MDL, in which the plaintiffs allege that the defendant’s cancer drug caused them to suffer permanent alopecia (hair loss).  The plaintiff moved for summary judgment on the defendant’s eleven affirmative defenses related to alternative causation.  She argued that, because the defendant had not provided expert proof to support its defenses, she was entitled to summary judgment on the issue of alternative causes of her injuries.  In other words, the plaintiff argued that, because the defendant had asserted alternative causation as the basis for a number of affirmative defenses but had not supported those defenses with expert opinions, she was entitled to take the issue of alternative causation off of the table and out of the case.

The plaintiff argued that, because the defendant bore the burden of proof on its affirmative defenses, it had failed to create a fact issue on whether anything other than its drug had caused the plaintiff’s alopecia.  In response, the defendant argued that, under Louisiana law, “cause” was not an affirmative defense upon which summary judgment could be granted.  It emphasized that the plaintiff “bears the burden of proving causation and that, to meet her burden, [the plaintiff needed] to establish with some certainty that none of the [other] medications she took caused” her injury.  Taxotere, 2020 WL 7480626 at *2.   According to the defendant, it did not bear the “burden of proving another cause.”  Id.

The court agreed, finding “that Plaintiff’s motion [was] based on the erroneous premise that causation is an affirmative defense.  When a party in his or her pleading labels a defense as an affirmative defense, this does not necessarily mean it is a true affirmative defense.”  Id.  As the court explained, a true affirmative defense, “if true, will defeat the plaintiff’s claim, even if all the allegations in the plaintiff’s complaint are true.”  Id.   In contrast, “a defense that merely points out a defect in the plaintiff’s prima facie case is a denial, not a true affirmative defense.”  Id. (citation omitted).   Louisiana has a statute that lists affirmative defenses, and it does not list “alternative cause.”  Same for Fed. R. Civ. P. 8.    As the court emphasized, “. . . [B]ecause a plaintiff bears the burden of proof on causation, defenses related to causation are not affirmative defenses.”  Id. 

The court concluded,

[The plaintiff] bears the burden of proving that [the defendant’s product] caused her injury.  The fact that [the defendant] mischaracterized certain defenses does not shift the burden to [the defendant] to prove that a cause other than [the defendant’s product] caused [the plaintiff’s] hair loss.”

Id.  The court denied summary judgment and invited the defendant to “challenge Plaintiff’s causation experts with reliable evidence.”

A short, sweet decision, and one with implications bigger than its heft.   An adverse (and incorrect) decision would have imperiled every defendant that includes laundry lists of so-called “affirmative defenses” in its answers, and that is pretty much every defendant, everywhere.  (Consider calling these “defenses” instead of “affirmative defenses.”)  We have said before that many jurisprudential misadventures can be attributed to courts’ incorrect applications of burdens of proof.   We are glad that this court got it right.

We thank every one of you for spending 2020 with us.  We wish you a safe and healthy New Years and a bright and hopeful 2021.   We look forward to spending it with you.