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Happy Taxotere Week to all who celebrate.   We doubt that many of our plaintiff attorney friends will be putting out the bunting and frosting the cakes, as the Taxotere decisions we are discussing this week are mostly bad for the left side of the v.  

Today’s opinion, In re Taxotere (Docetaxel) Products Liability Litigation, 2024 U.S. Dist. LEXIS 90685 (E.D. Louisiana May 21, 2024), sees the district court’s denial of the plaintiff motion to reconsider the earlier entry of a Lone Pine order.  We discussed the Lone Pine order entered in the Taxotere MDL here.  If you haven’t committed Taxotere MDL history to memory, here is a brief primer: Many, many plaintiffs alleged that the chemotherapy drug caused them to suffer a certain form of alopecia.  After “extensive” discovery, 80% of the plaintiffs came up with no evidence of the hair loss injury and/or never spoke to their doctors about such injury.  The defendant requested a Lone Pine order (which in this case meant an order requiring evidence of an alopecia diagnosis), but the court deferred ruling on that motion.  Then there were bellwether trials, two waves of discovery, and settlement negotiations.  

It turned out that 427 of the 1000 wave 2 cases were deemed not amenable to transfer because there were serious questions regarding product usage.  Wow. That fact should have guaranteed issuance of a Lone Pine order.  But as we said in our earlier post, what ultimately prompted the court to issue the order requiring proof of a diagnosis was almost certainly the settlement negotiations.  The truth is that the high rate of meritless cases in the Taxotere MDL is by no means an outlier.  The truth is that most MDLs are weighted down by garbage inventories.  The truth is that Lone Pine orders would do a whole lot of good if they were entered early in the litigation. But the truth is that too many MDL judges worship at the altar of settlement, and refuse to enter a Lone Pine order until it can serve as a reward to parties who have committed to a settlement process.  Pity.

Anyway, the Taxotere plaintiffs are in a hole and can’t stop digging.  They sought reconsideration of the Lone Pine order and got clobbered. The plaintiffs argued that the Lone Pine order was “extraordinary” and “unwarranted,” was “unfair” because it “inequitably treats similarly situated plaintiffs,” and it “unnecessarily bifurcates expert discovery, which, in turn, will multiply costs and cause additional cross examination fodder at trial.” 

These word salad arguments are nonsense, of course. The court’s opinion reiterates the problems with the Taxotere inventory.  Not only were 80% of plaintiffs unable to obtain a medical diagnosis that they even had the complained-of condition, but many plaintiffs dismissed their cases when they were required to come up with something/anything. Moreover, the defendant did a good job of presenting specific examples of plaintiffs who had no real case. Where a record exists that shows plaintiffs cannot prove a certain element of their case, a court can legitimately focus on that element.  Further, expert affidavits or reports are often required by Lone Pine orders.  The plaintiffs griped that the order was burdensome because it “improperly front loads Plaintiffs’ expert obligations to provide a contested expert opinion,” but there is nothing intolerable about requiring a plaintiff to provide proof of an essential factual element.  The entire purpose of Lone Pine orders is to identify and cull meritless claims.  An appendix contains a useful form of order.The only thing the plaintiffs won was a little more time to find experts.  They pointed to a “lack of widespread expertise in diagnosing” the particular form of alopecia.  They wanted a stay of the order.  Instead, the court slightly extended the deadline for coming up with the diagnoses.  It is put up or shut up time.

Again, we think the Lone Pine order should have been entered a lot sooner – like when the defendant initially asked for it.  The Taxotere court congratulated itself on holding off, observing that it was the discovery that showed the high degree of frivolity in the MDL inventory.  Okay, but by now we all know that this is inevitably how MDLs work.  Too many plaintiff attorneys stuff too many bogus cases into MDLs, hoping sheer size will exert settlement pressure and that enough of the parked bogus cases will line up for a payday.  

Better late than never, we suppose.  But justice delayed can also be justice denied.