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We’ve blogged before about the plaintiffs’ self-defeating “injury” definition in the Taxotere mass tort litigation.  Specifically, plaintiffs have defined their injury as being hair loss that persists more than six months after their cessation of treatment with the defendant’s cancer chemotherapy drug.  But, because this litigation (like most product liability MDLs) only exists because of lawyer solicitation, such solicitation dredges up many plaintiffs who sat on their hands for much longer than the aforesaid six month period.  Having a date certain as to when the injury exists greatly assists any defendant in winning dismissal of these stale claims on statute of limitations grounds.

That’s not just true in the Taxotere MDL

Shook Hardy’s Harley Ratliff, who keeps informed of Taxotere goings on, recently let us know of the recent dismissal of all four of the bellwether plaintiffs selected in the New Jersey Taxotere “multi-county litigation (that jurisdiction’s MDL equivalent).  These four opinions – Adams, King, Linton, and Massey – are identical, because all of the four bellwethers were statute-barred, attorney-solicited cases.

[T]he applicable body of law that governs these motions is identical.  More specifically, there is no dispute that plaintiffs’ tort claims in this [MCL] are governed by [the New Jersey statute of limitations] provides in relevant part that plaintiffs’ injury claims “shall be commenced within two years next after the cause of any such action shall have accrued.”

Adams v. Sanofi U.S. Services, 2023 N.J. Super. Unpub. Lexis 927, at *2-3 (N.J. Super. Law Div. June 8, 2023).  In addition, the four plaintiffs’ warranty claims were all governed by New Jersey’s warranty statute of limitations, which like other UCC-based statutes of limitations, is four years from the date of delivery of the product – with no discovery rule.  Id. at *3.

The first item of interest is that the MCL court was utterly unconcerned with where any of these four plaintiffs resided (as best we can tell, Plaintiff Adams seemed to be from Florida, id. at *14; and plaintiff King from Oklahoma, id. at *14, 94, and the other two we can’t tell).  Why is that?  Well a few years ago, during the Accutane MCL, the New Jersey Supreme Court got frustrated with all the litigation tourist plaintiffs flocking to New Jersey and forcing New Jersey courts to apply the laws of their home states.  That court ruled, in effect, that when mass tort litigation tourists come to New Jersey to sue a New Jersey company, they may only do so under New Jersey law.  See In re Accutane Litigation, 194 A.3d 503, 521-24 (N.J. 2018) (all substantive law); McCarrell v. Hoffmann-La Roche, Inc., 153 A.3d 207, 221-23 (N.J. 2017) (statute of limitations specifically).  For more on those decisions, see our posts here and here.

Here, all four bellwether plaintiffs presented with essentially the same statute of limitations-related facts.  They all took “a chemotherapy cocktail that included Taxotere.”  Adams, 2023 N.J. Super. Unpub. Lexis 927, at *3.  They all claimed that their prescribers told them “that the chemotherapy would cause temporary hair loss,” but did not mention that the loss could be permanent.  Id.  They all claimed “permanent hair loss occurr[ing] six months from the date chemotherapy was completed” as their injury.  Id. at *3-4.  All of them had very stale claims – with that injury occurring before 2008, which was seven years before the critical 2015 label change that added “reports of permanent hair loss” to the drug’s label.  Id. at *4.  All of their complaints were filed four days shy of two years after that label change.  Id.  As to assertions of liability, all four complaints were identical.  Id. at 5.

They all lost.  New Jersey’s discovery rule (like that of most, if not all, states) required a plaintiff to exercise “ordinary diligence” to discover that their injury was “due to the fault of another.”  Id. at *7 (citation and quotation marks omitted). 

A plaintiff does not require legal consultation from an attorney, does not need to understand the legal significance of their claim, nor does a plaintiff require medical certainty for a claim to accrue.  Similarly, a plaintiff does not require knowledge of a specific basis for legal liability or a provable cause of action before the statute of limitations begins to run.  If fault is not self-evident, a plaintiff need only have reasonable medical information that connects an injury with fault.

Id. at *8 (citations and quotation marks omitted).  Finally, as to warranty claims, there is no discovery rule at all, and those claims all expired four years after the plaintiffs’ last use of the drug − period.  Id. at *9-10.

In addition to the discovery rule, all four plaintiffs claimed “equitable tolling.”  Id. at *11-12.  None of them, however, could point to any “intentional inducement or trickery” that the defendant directed specifically at one of them, individually.  Id. at *12.  Further, the same ordinary diligence requirement applied to both the discovery rule and to equitable tolling.  Id.

For each of the four plaintiffs, their injury accrued on the bright-line date six months after they completed their respective chemotherapy treatments with the drug.  Plaintiff Adams was typical.  She completed her therapy in 2007, more than ten years before she filed suit – that suit having been solicited by a p-side lawyer.  Id. at *14.  Her “injury” thus existed as of December 30, 2007, six months after her treatment was completed.

Like all four plaintiffs, Adams claimed that the statute of limitations was tolled until the December 2015 label change, and that she just barely (by four days) squeaked in under the ensuing two-year deadline.  Id. at *23.  The court disagreed.  All the New Jersey (and most other) discovery rule required was awareness of (1) the injury (persistent 6 month-plus hair loss) and (2) that it was caused by someone else (by chemotherapy).

[T]he discovery rule does not render [plaintiff’s] complaint timely, with the Court finding that [she] knew or should have known she was injured before December 7, 2015.  Specifically, the record reflects that as early as 2007, [she] knew that her hair had grown back differently after chemotherapy.  [She,] by way of her Plaintiff Fact Sheet (“PFS”), claimed that she experienced permanent hair loss since December 1, 2007. . . .  [Her] hair loss is also noted in her medical records and was the reason [she] sought treatment with specialists in hair loss.  The injury claimed in this lawsuit is permanent hair loss.  Based on the undisputed and clear record, in 2007, [plaintiff] had knowledge of her injury comprising of permanent and persistent hair loss that, by her own admission, was present for ten years prior to the filing of her lawsuit.

Id. at *24-25.  This wasn’t a close case.  Plaintiff Adams’ “sworn testimony and plaintiff fact sheet” established that she blew the statute of limitations by some eight years.  Id. at *27.  Her injury was permanent hair loss as defined in her complaint and fact sheet – persisting more than six month after cessation of chemotherapy.  And hair loss is a well-known consequence of chemotherapy.  “This case does not involve an unknown relationship between a pharmaceutical product and an injury,” but rather “a straightforward cause and effect relationship.”  Id. at *29.

The discovery rule could not toll the statutory period until “either the 2015 Taxotere label change or . . . when [plaintiff] was contacted by counsel.”  Id. at *30.  “[T]he statute of limitations begins to run when the plaintiff is aware, or reasonably should be aware, of facts indicating that she has been injured through the fault of another, not when a lawyer advises her that the facts give rise to a legal cause of action.” Id. (quoting Baird v. American Medical Optics, 713 A.2d 1019, 1026 (N.J. 1998)).  Rather. “the discovery rule requires [plaintiff] to diligently pursue her claims,” which she plainly had not.  Id. at *31. “The unfortunate reality is that [plaintiff] possessed the requisite knowledge for an actionable claim before December 7, 2015, however [she] did not exercise reasonable insight or diligence to discover the basis for her claim.”  Id.

That’s what happens when attorney solicited stale claims assert a temporally defined injury.  The remaining make-weight arguments require little discussion.  First, UCC warranty claims do not have any discovery rule for their four-year statute of limitations, so they failed.  Id. at *34.  Second, equitable tolling has the same ordinary diligence requirement as the discovery rule, and required some sort of direct contact between defendant and plaintiff – which did not exist.  Id. at *36-37.  Finally, the court rejected the sort of last-ditch mendacity that, unfortunately, is all too common in mass torts:  a plaintiff’s after-the-fact attempt to change the underlying facts:

To the extent [plaintiff’s] updated certification, dated January 23, 2023, contradicts her prior testimony, the Court will not consider those inconsistencies or contradictions pursuant to the sham affidavit doctrine.  This doctrine permits a trial court, at the summary judgment stage, to reject an affidavit that patently and sharply contradicts deposition testimony without any explanation for the contradiction. . . .  In addition to contradicting her prior testimony, the Court also rejects this affidavit finding that this new certification is simply not objectively reasonable given the sequence of events and timeline as set forth in this opinion.

Id. at *34-35.  If defense lawyers ever tried something like that, we’d (properly) be sanctioned.  Plaintiffs – as these cases show – do it with seeming impunity.

The other three plaintiffs, King, Massey and Linton, were essentially the same – including the filing of sham affidavits.  See King v. Sanofi U.S. Services, Inc., 2023 N.J. Super. Unpub. Lexis 926, at *93-107 (N.J. Super. Law Div. June 8, 2023); Massey v. Sanofi U.S. Services, Inc., 2023 N.J. Super. Unpub. Lexis 928, at *93-107 (N.J. Super. Law Div. June 8, 2023); Linton v. Sanofi U.S. Services, Inc., 2023 N.J. Super. Unpub. Lexis 929, at *47-60 (N.J. Super. Law Div. June 8, 2023).  All four bellwether cases – including, we presume, at least two selected by the plaintiffs’ side – involved solicited claims that did not miss the statute of limitations by a little bit, but by a mile; enough that minor factual differences in their respective medical histories didn’t matter.

The statute of limitations is only one reason why these Taxotere cases are not just meritless, but downright bad, cases.  The kind of systematic solicitation of stale cases is unfortunately commonplace in mass torts – it is here that third-party litigation funders are most detrimental to the legal system, because if they did not finance such solicitation, this deluge of stale claims probably wouldn’t happen.

But beyond that, never forget what Taxotere is:  one of the most effective treatments available for “advanced-state breast cancer.”  That intended use also has learned intermediary rule consequences.  No respectable oncologist would be deterred in a life-or-death situation by hair loss, be it temporary or permanent.  But, even those few (if any) plaintiffs who are not barred by the statute of limitations or fail the causation requirements of the learned intermediary rule, will eventually have to convince a finder of fact that, with their very lives at stake, they purportedly would have turned down their oncologists’ recommended treatments because they might lose their hair.  Good luck with that.