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If at first you don’t succeed . . . re-urge.  That’s the word the MDL court used in In re: Taxotere (Docetaxel) Products Liability Litigation, 2024 WL 718698 (E.D. La. Feb. 21, 2024).  Defendants urged, re-urged, and again re-urged the court to enter a Lone Pine Order.  And after four years of re-urging, the order was just entered.  But not before a lot of wasted time.

The decision recites the numerous “roadblocks” plaintiffs’ claims have faced over the course of this eight-year litigation.  For example, half the cases selected as bellwethers were “disqualified” for failure to establish product identification or failure to provide photographs of the alleged injury—permanent hair loss caused by the drug.  Another 4 bellwether plaintiffs voluntarily dismissed their cases.  And 17 of 19 bellwethers were dismissed on dispositive motions.  Likewise, the court entered remand orders for waves of cases and over half of those cases never got remanded because they were either dismissed or found lacking in some capacity such as product identification.  Defendant claims that over 80% of the MDL plaintiffs have never been diagnosed with the relevant injury.  Even all of that might not have been enough to get the Lone Pine order entered.  What appears to have finally tipped the scales was settlement.  Defendant reached an agreement in principle anticipated to resolve approximately 30% of the pending cases.  So, as happy as we are to see a Lone Pine order entered, it was entered not so much as a recognition of the need for better vetting of all the meritless cases that MDLs attract, but as a device for further settlement.  But, with 70% of the cases still in play, the order still should have an excellent, if delayed, vetting effect. 

The decision contains a nice discussion of Lone Pine law in the Fifth Circuit, in particular that Lone Pine orders really just require plaintiffs to provide information they should have had before filing suit pursuant to Rule 11.  Also, Lone Pine orders requiring “proof of medical diagnosis” are appropriate to “winnow[ ] non-compliant cases from the MDL.” 

In entering a Lone Pine order, courts “should strike a balance between efficiency and equity.” Defendant requested four things:  plaintiff must certify her willingness to proceed; plaintiff must provide updated authorizations and fact sheets; plaintiff must submit an expert medical declaration diagnosing plaintiff with the relevant injury; and plaintiff must participate in some limited discovery.  Plaintiffs argued this was an extraordinary procedure that would undermine settlement and stall remand.  The court disagreed.

After eight years, the court did not feel it would be unduly burdensome to require plaintiffs to obtain “basic proof of their injuries by way of a diagnosis.”  A full expert report is not required, but the declaration of a qualified physician that he was prepared to testify that to a reasonable degree of medical certainty, plaintiff suffered drug induced hair loss (as opposed to some other type) is.  That declaration is required to be based on an in person physical examination of the plaintiff.

It is a strong order tailored to the specific injuries alleged.  We just can’t help but wonder how much time and money could have been saved if the order had been entered four years ago on the first urging.