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
In early Summer we will be attending yet another bench and bar conference on Multidistrict Litigations. The organizer of the conference recently asked us to switch from a panel focusing on MDL problems to a panel discussing potential solutions. Of course, we agreed, because we’re all about being cooperative and constructive. Right? Not really. Grousing
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
It has been almost exactly one year since we brought you Part 2 of this Lone Pine story; so, like the court in its most recent decision, we’ll give you a little refresher. The Zostavax MDL in its fifth year. Plaintiffs allege that defendants’ anti-shingles vaccine caused them various injuries including shingles, hearing loss, and
We’ve written about Lone Pine orders many times before. (Here and here, for example.) In brief, a Lone Pine order (so-called because that is the name of the seminal New Jersey case) requires plaintiffs to furnish medical evidence, usually in the form of an expert affidavit, showing that the plaintiff suffered from the
Earlier this year we blogged about the Lone Pine order entered in the Zostavax MDL that required those plaintiffs alleging that the anti-shingles vaccine caused them to get shingles (1,189 of them) to produce evidence of specific causation by means of a PCR test. The goal of the Lone Pine order was to winnow out non-meritorious claims. That was Part 1. Defendant’s motion to dismiss all 1,189 plaintiffs because not a single one produced the required test result or even asked for an extension – that was Part 2. Without evidence of specific causation, the court dismissed about half the cases in the MDL.
Shingles are caused by the same virus that also causes chicken pox, although the adult disease shingles is much more dangerous. The virus remains in the body for life and can either lie dormant or reactivate and cause shingles. Almost everyone over the age of 30 in the United States has had chicken pox and therefore carries the “wild-type virus” in their systems. In re Zostavax Products Liability Litigation, 2022 WL 17477553, *2 (E.D. Pa. Dec. 6, 2022). The vaccine consists of the Oka strain of the virus, a live-attenuated virus that is a weakened form of the wild-type. Defendant presented “uncontradicted medical authority” that the only way to know whether a person’s shingles was caused by the wild-type virus or the Oka strain is through a PCR test. In fact, plaintiffs’ own expert testified that specific causation could only be determined with a PCR test. Id. That is the same expert who failed to perform a differential diagnosis ruling out the wild-type virus in 5 bellwether cases that were therefore dismissed on summary judgment. That is what led to the entry of the Lone Pine order. If none of the bellwether plaintiffs had sufficient causation evidence, the court wanted to know which plaintiffs did.Continue Reading Lone Pine Stands Tall in Zostavax MDL — Part 2
One of the problems with so-called Lone Pine orders in MDLs is timing – they are usually entered way too late, more as vehicles to enforce settlements than as any genuine effort to weed out the large number of bogus cases that everyone, including plaintiffs, admits are present in MDLs.
We can’t say that the
We have long endorsed the use of Lone Pine orders as a partial antidote to wasteful mass litigation. The issue is the numbers, large numbers of meritless claims that are parked in a mass proceeding, such as an MDL, where they both strain judicial resources and detract from litigation of claims that have arguable merit.
February is a fine time to cuddle up with a good book or a short case. Take a look at In re Xarelto Products Liability Litigation, 2021 WL 493069 (E.D. La. Feb. 10, 2021). Pro se plaintiffs brought a lawsuit claiming their relative died from a brain hemorrhage caused by Xarelto. Their case was