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The orders denying untimely, post-remand attempts to amend complaints in the Taxotere litigation are piling up, and it doesn’t get old.  We recently reported on one such denial in the Northern District of California.  In recent weeks, district courts in New York, North Carolina, and Tennessee (among others) have joined in.  Today we report on three of those decisions.

For many plaintiffs’ attorneys, the beauty of an MDL is they get to park their cases, do no work for years, then have a payday after the leadership counsel has done all the work.  But on the flipside, they have to sleep in the bed that leadership made for them. 

In our prior post, we explained the history of the Taxotere MDL and the plaintiffs’ proposed amendments to the master pleadings.  In short, plaintiffs in the MDL had certain timeliness issues arising from the definition of injury in the Master Complaints as “an absence of or incomplete hair regrowth six months beyond the completion of chemotherapy.”  We’ve blogged about the Taxotere plaintiffs’ timeliness woes before here and here.  Leadership not only made their bed with this injury definition in the Master Complaints, they put a mint on the pillow by including this definition of injury in their expert reports.

In 2019, three years after the MDL started, the MDL plaintiffs requested leave to amend the Master Complaint to eliminate the six-month part of the injury definition.  The MDL Court denied that request, citing prejudice to defendants and stating that it would undo the work done in the MDL.  Undeterred, individual plaintiffs in the MDL sought leave to amend, which the MDL Court denied.  But the MDL Court issued a pretrial order giving plaintiffs a deadline to amend short-form complaints that could include case-specific allegations impacting the statute of limitations “regarding particularized facts individual and specific to each Plaintiff’s medical care and treatment and/or that Plaintiff’s communications with medical professionals.”  In other words, not allegations altering the definition of “injury.” 

The plaintiffs in the three cases we discuss today did not avail themselves of the opportunity to amend in the MDL.  Instead, they continued with the hide-in-the-weeds MDL strategy, did no work, and waited until after remand to request amendments directly contradicting the MDL court’s ruling on amending the definition of injury.  The remand courts have so far unanimously denied these requests. 

Jackson v. Sanofi-Aventis U.S. LLC and Byrd v. Sanofi-Aventis U.S. LLC (In re: Cases Transferred to TNMD from In re: Taxotere (Docetaxel) Prods. Liab. Litig), 2024 U.S. Dist. LEXIS 48896 (M.D. Tenn. Jan. 29, 2024) addressed two cases, both of them seeking delinquent amendments.  The court held that the “good cause” standard would apply to the proposed amendments because the deadline for amending in the MDL had passed.  Applying the law of the case doctrine, the court found no reason to disturb the MDL Court’s rejection of the request to eliminate the six-month limitation included in the MDL’s definition of injury. The court also concluded plaintiffs unduly delayed and that amendments would unduly prejudice defendants.

The second case, Fussell v. Sanofi-Aventic U.S. LLC, et al., 2024 U.S. Dist. LEXIS 50804 (W.D.N.C. Mar. 12, 2024), is much the same, denying the plaintiff’s motion to amend “[f]or multiple reasons.”  In that case, plaintiffs leaned hard on a stipulation between the parties in the MDL regarding the procedure for amendments, but the Court was not swayed.  Nothing about that stipulation excused the plaintiff waiting years to amend.  Another one bites the dust.

In the third case, Daddino v. Sanofi US Servs, Inc., 2024 U.S. Dist. LEXIS 47703 (E.D.N.Y. Mar. 18, 2024), the Report & Recommendation was equally unimpressed by the six years that passed from filing until requesting the amendment and followed the MDL Court’s reasoning.  That would be enough to deny amendment, but the Court had an entirely independent reason:  That the amendment would be futile.  In New York, the three-year statute of limitations runs from the date of discovery of the injury (not diagnosis), which means “discovery of the condition on which the claim was based and nothing more.”  Id. at *35.  Plaintiff’s claim was too late, amendment or no amendment.  Assuming it’s adopted, another good win to add to the arsenal of Taxotere rulings denying untimely amendments.