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Today we revisit the Lone Pine order for the Taxotere MDL.  We previously discussed the entry of the Lone Pine order and the court’s denial of plaintiffs’ motion to reconsider entry of the order.  Here, plaintiffs tried once again to take an axe to the Lone Pine, this time by arguing that it is unfair specifically with respect to deceased plaintiffs.  The court roundly rejected plaintiffs’ arguments. In re: Taxotere (Docetaxel) Prods. Liab. Litig., 2024 WL 4362982 (E.D. La. Oct. 1, 2024).

As we have discussed before (see, for example, here and here), MDLs are often bloated with meritless claims.  The Taxotere MDL is a poster child for that.  We can’t talk about the Taxotere Lone Pine order without repeating that in the Taxotere MDL, 80% of the plaintiffs did not obtain a diagnosis of PCIA, and many plaintiffs voluntarily dismissed their claims when called upon to provide proof of causation.  80% . . . let that sink in. Plaintiffs’ complaints about fairness must be viewed against that backdrop.  There’s certainly nothing fair about defending an MDL and negotiating settlement when 80% of the cases would fail out of the gate.

The plaintiffs’ claim in the Taxotere MDL is that the drug caused permanent chemotherapy-induced alopecia (“PCIA”).  Logically, plaintiffs’ counsel should confirm prior to filing a lawsuit under Rule 11 that the plaintiff actually experienced PCIA.  Consistent with that logic, the Taxotere Lone Pine order requires, among other things, proof of the alleged injury via an expert declaration.  With respect to deceased plaintiffs, the order required that counsel file an affidavit “from a qualified expert certifying that the expert physically examined the deceased and that, on any occasion prior to death, the deceased was diagnosed with [PCIA].” Id. *1. 

Plaintiffs asserted various challenges to the latter provision, including that it imposed an unfair burden on the deceased plaintiffs’ representatives and violates Rule 56.  The MDL court was not persuaded.

First, the court disagreed that the order imposed an unfair burden on the representatives of the deceased plaintiffs.  The court noted that it was not requiring a full-blown Rule 26 expert report, but simply a “limited declaration as to diagnosis.”  Id. *3.  Plaintiffs’ argument that they did not have time to comply was not credible given that they had six months to comply and did not offer any specific explanation as to why additional time was needed.

Plaintiffs also argued that the Lone Pine order violated Rule 56 because an expert affidavit would not necessarily be required to prove causation on a motion for summary judgment or at trial.  The plaintiffs also argued it was unfair to impose a requirement for in-person examination and diagnosis after the plaintiffs had already died.  The court rejected these arguments.  Critically, the plaintiffs’ own expert had opined that a PCIA diagnosis requires physical examination – it cannot be diagnosed through photos.

The court was also guided by the Third Circuit’s recent decision arising from the Zostavax MDL, which we discussed here.  In Zostavax, the court required PCR testing in its Lone Pine order, which certain plaintiffs did not have and could no longer obtain.  The Third Circuit held that it would have been “pointless” to allow the cases to proceed to summary judgment because the plaintiffs did not explain how they could have established specific causation without PCR tests.

The same analysis applied here.  Plaintiffs’ conclusory argument that they could have established causation by other means was unsupported and unpersuasive, particularly in light of their’ own experts’ admission that in-person examination is required to make a PCIA diagnosis.  Like the Zostavax plaintiffs, Plaintiffs here did not offer any alternative means of diagnosis or identify any expert to support their arguments.  Reconsideration was not warranted just based on plaintiffs’ attorneys’ say-so. 

Simply put, just because some plaintiffs will be unable to comply with a Lone Pine order does not make it unfair or improper.  We are glad to see this sorely needed Lone Pine order continue to stand.