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We hope, when our time on earth is up, we are remembered as someone who possessed skills and made contributions.  We are certain that gardening will not be among them.  In that vein, we recently hired professionals to plant a lovely new bed at the end of our driveway.  We were admonished that we must water for at least a month until the bed became self-sustaining.  And water we did.  Too late, we regretfully report, we learned that it is possible to have too much of a good thing, at least where water and new plantings are concerned.

Not so for good decisions on issues that are important in our own practice.  In that vein, we are pleased that the last week or so brought a bumper crop of great results for the Taxotere defense team, all under the In re: Taxotere (Docetaxel) Prods. Liab. Litig. caption – two Fifth Circuit appellate affirmances and several victories from the MDL court.  We share the former today and will save the others for our next post.

First Case:  Claims Are Time-Barred

As blog readers know, Taxotere is a chemotherapy drug, used to treat certain cancers, including breast cancer.   The MDL plaintiffs are women who claim to have suffered permanent hair loss after their breast cancer was treated with Taxotere.  Today’s first case, — F.3d —, 2021 WL 1560724 (5th Cir. Apr. 21, 2021), is a decision on three plaintiffs’ appeals of the MDL court’s grant of summary judgment for the defendant on statute of limitations grounds.

Some background:  Louisiana applies a one-year “prescriptive period,” or statute of limitations, for personal injury claims, including product liability claims.  In their MDL master complaint, the plaintiffs defined “permanent hair loss” as hair loss that persists six months after the completion of chemotherapy.  All three plaintiffs suffered “permanent hair loss,” as the complaint defined it, after their chemotherapy treatment.  All three filed their Complaints years (six to seven years) later.  The MDL granted summary judgment for the defendant on all three suits, holding that the claims were “facially prescribed” (time-barred on their face – more about this in a moment) and that the doctrine of contra non valentem (a discovery rule-esque doctrine – more below) did not save the claims.  All three plaintiffs appealed.

The Fifth Circuit explained that Louisiana’s one-year “liberative prescription period” (limitations period) “commences to run from the day injury or damage is sustained.”  2021 WL 1560724 at *2 (citation to statute omitted).  The burden of proof “is normally on the party pleading prescription” (a defendant arguing that the case is time-barred);  “however, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescription period . . . .”  Id.  (internal punctuation and citations omitted).

In this case, the appellants argued that the one-year prescription period did not begin to run until they “learned of their injury and its cause,” and that they did not acquire this knowledge until years after their treatment.  The appellees countered that, under the plaintiffs’ own definition, as pled in the master complaint, the injuries were sustained, and prescription began to run, six months after the last chemotherapy treatment, when all three appellants’ hair loss persisted.  The Fifth Circuit agreed, affirming the MDL court’s holding that the appellants’ claims were “facially prescribed.”

It then turned to the issue of whether the prescription period was tolled for these appellants.  Unlike some Louisiana prescription statutes, the statute that applies to products liability cases does not include tolling language.  Instead, the equitable doctrine of contra non valentem agere non currit praescriptio (“no prescription runs against a person unable to bring an action,” contra non valentem for short) tolls the prescription period in certain “exceptional circumstances.”  There are four such “exceptional circumstances,” but the only one that possibly applies to this case is the fourth:  the period is tolled “where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.”  Id. at *4 (citations omitted).  As the court explained, this doctrine is “often named the ‘discovery rule’” and it “applies only when such ignorance is not willful and does not result from negligence.”  Id. (citations omitted).  Actual knowledge is not required, under this doctrine – constructive notice suffices:

Whatever is notice enough to excite attention and put the plaintiff on [her] guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead, and such information or knowledge as ought to reasonably put the plaintiff on inquiry is sufficient to start the running of the prescription.  That means prescription runs from the time there is notice enough to call for inquiry about a claim, not from the time when the inquiry reveals facts or evidence sufficient to prove the claim.

Id. (emphasis in original, internal punctuation and citations omitted).  In other words, a Louisiana plaintiff must “seek out those whom [she] believes may be responsible for a specific injury.”  Id. at *5 (citations omitted).  Plaintiffs “are not entitled to wait to sue until they are certain of what and/or who caused their injury.”  Id. 

Here, the appellants testified in deposition that they attributed their initial hair loss to their chemotherapy treatments, and the court held that “the standard of ‘knew or should have known’ [meant that] they needed to investigate Taxotere as a potential cause” of their persistent hair loss.  Id. at *6.  A “reasonable inquiry,” according to the court, “would likely [have included] consultation with doctors . . . .”  Id.  None of the appellants asked her doctor what might be causing her persistent hair loss.  In addition, “a plaintiff with persistent hair loss might instead search for the cause herself.”  Id.  If she had, she would have learned that, by 2006, a group of women “with an online presence” argued that the defendant’s product caused them to suffer permanent hair loss.  By 2010, articles had been published about this possible relationship.  (Plaintiffs pled much of this material in their own complaints.)  But the appellants did not file suit until 2016.

The Court concluded, “[W]e find that Taxotere as a possible cause of the persistent hair loss was not an obscure possibility . . . , [and], insofar as we are concerned with evaluating each Appellant’s effort to seek the cause of her injury, diligence required that Taxotere be explored as a possible explanation, . . . [and a] reasonable inquiry would have uncovered at least some information that linked Taxotere to persistent alopecia.”  While the appellants did not link the appellee to their injuries “until they saw [lawyer] advertisements in 2016,” that is “not the question.”  The appellants “did not act reasonably in light of their injuries, and their causes of action were reasonably knowable in excess of one year” before they filed suit.  Id.  (internal punctuation and citations omitted).  Summary judgment affirmed, in a testament to solid reasoning (and a “be careful how you plead the definition of your injury” cautionary tale).

Second Case:  No Warnings Causation

The second decision brings us particular joy, as it relates to our favorite (oft-misapplied) doctrine.   In this case, — F.3d —, 2021 WL 1526429 (5th Cir. April 19, 2021), the appellant was treated with Taxotere for an aggressive form of breast cancer that had spread throughout her body.  She had serious pre-existing cardiac conditions that affected her doctor’s treatment choices.  He recommended a Taxotere-based chemotherapy regimen as her best option for reducing the risk that her cancer would recur.

At the time (2013), Taxotere’s warnings did not include a warning of the risk of permanent hair loss, though, the doctor was aware – and warned the appellant – of the risk of temporary alopecia and of the risk that the hair might grow back with a different color, texture, or thickness.  The appellant did not ask about alternatives that would avoid this risk, and she consented to the recommended treatment.  Her lawsuit asserted the usual litany of claims, including failure to warn.  The appellee moved for summary judgment only on the warnings claim, and the MDL court granted the motion.  After conferral, all of the plaintiff’s remaining claims were dismissed, the district court entered final judgment, and the plaintiff appealed.

On appeal, the Fifth Circuit explained that, in Louisiana (like most everywhere else), a plaintiff asserting a failure-to-warn claim must prove both that the warning was inadequate and that the inadequate warning was both a cause-in-fact and proximate cause of the alleged injuries.  Because it was undisputed that the prescribing information did not warn of the risk of permanent hair loss, the inquiry, on summary judgment and on appeal, focused on the second prong, so-called “warnings causation.”  To defeat summary judgment on this prong under Louisiana’s learned intermediary doctrine, a plaintiff must adduce evidence that “a proper warning would have changed the decision of the prescribing physician, i.e. that but for the inadequate warning the prescribing physician would not have used or prescribed the product.”  2021 WL 1526429 at *3 (internal punctuation and citations omitted).  The appellant, like so many plaintiffs we have encountered, tried to muddy this standard, arguing that “the focus of [the court’s] inquiry should be how patient choice would have steered the conversation and the ultimate prescribing decision” if the warning had been provided.  And, while the court conceded that, “under Louisiana law, the decision to use a drug in a particular circumstance rests with both the doctor and the patient, . . . [the] causation analysis  in a failure-to-warn claim asserted against a drug’s manufacturer . . . is focused on the prescribing physician’s decision to prescribe the drug.”  Id. (internal punctuation and citations omitted).  The court concluded,

So, to the extent that patient choice is relevant, that relevance is cabined to helping us decide whether [the appellant’s] evidence – including that of other available treatments and the importance she places on her appearance – is sufficient to introduce a genuine dispute of material fact as to whether [the doctor’s] prescribing decision would have been different had he known that [the] risk of alopecia was potentially permanent rather than temporary.  It is not.

Id.  In reaching this conclusion,  the court expressly rejected the MDL court’s conclusion, made repeatedly in Taxotere decisions, that “the chemotherapy decision-making process is unique,” which the MDL court used to shift the focus of warnings causation towards the plaintiff’s actions, rather than the prescriber’s.   2021 WL 1526429, at *3 n.4  (“Under Louisiana state law, we find no support for this proposition and no occasion to deviate from binding caselaw to apply this standard.”)

First, the doctor testified that the inclusion of the permanent alopecia warning had not materially altered his risk benefit analysis for Taxotere, and that alopecia is a widely-known side effect of chemotherapy drugs.  The court emphasized, “The specific type of alopecia appears . . . to have had no effect on [the doctor’s] prescribing decision, and this support the conclusion that [the defendant’s] failure to warn could not have been the cause of [the appellant’s] injury.”  Id. at *4 (internal punctuation and citation omitted).  Second, the doctor “repeatedly testified that a . . . label warning of potentially permanent hair loss . . . would not have changed his” prescribing decision.  In fact, he testified that, if someone with appellant’s cancer and medical history came to him today, he would make the same recommendation.  Id. at *4.   Finally, there was no indication that the appellant had sought alternatives that might carry less risk of hair loss, notwithstanding her claim that her appearance was important to her.  In other words, “there [was] little evidence that [the appellant] might have steered the conversation in such a way that [the doctor] would have changed his prescribing decision had he known” of the risk of permanent hair loss.  At most, the court concluded, there was a “scintilla of evidence” in support of the appellant’s position, which was “insufficient to create a genuine dispute of material fact” as to whether a “permanent hair loss” warning would have changed the doctor’s prescribing decision.”  Id.  Again, summary judgement affirmed, in another great decision resting on a correct analysis of the applicable standard and burden of proof.

We will report on the second group of Taxotere victories in an upcoming post.  In the meantime, if you are driving around, our yard is the one with the swamp.  Stay safe out there.