The orders denying premature, post-remand makes an attempt to amend complaints within the Taxotere litigation are piling up, and it doesn’t get outdated. We just lately reported on one such denial within the Northern District of California. In current weeks, district courts in New York, North Carolina, and Tennessee (amongst others) have joined in. At this time we report on three of these selections.
For a lot of plaintiffs’ attorneys, the great thing about an MDL is that they get to park their circumstances, do no work for years, then have a payday after the management counsel has finished all of the work. However on the flipside, they should sleep within the mattress that management made for them.
In our prior publish, we defined the historical past of the Taxotere MDL and the plaintiffs’ proposed amendments to the grasp pleadings. In brief, plaintiffs within the MDL had sure timeliness points arising from the definition of damage within the Grasp Complaints as “an absence of or incomplete hair regrowth six months past the completion of chemotherapy.” We’ve blogged in regards to the Taxotere plaintiffs’ timeliness woes earlier than right here and right here. Management not solely made their mattress with this damage definition within the Grasp Complaints, they put a mint on the pillow by together with this definition of damage of their knowledgeable experiences.
In 2019, three years after the MDL began, the MDL plaintiffs requested go away to amend the Grasp Criticism to get rid of the six-month a part of the damage definition. The MDL Courtroom denied that request, citing prejudice to defendants and stating that it could undo the work finished within the MDL. Undeterred, particular person plaintiffs within the MDL sought go away to amend, which the MDL Courtroom denied. However the MDL Courtroom issued a pretrial order giving plaintiffs a deadline to amend short-form complaints that might embody case-specific allegations impacting the statute of limitations “concerning particularized info particular person and particular to every Plaintiff’s medical care and remedy and/or that Plaintiff’s communications with medical professionals.” In different phrases, not allegations altering the definition of “damage.”
The plaintiffs within the three circumstances we focus on right now didn’t avail themselves of the chance to amend within the MDL. As an alternative, they continued with the hide-in-the-weeds MDL technique, did no work, and waited till after remand to request amendments immediately contradicting the MDL courtroom’s ruling on amending the definition of damage. The remand courts have up to now unanimously denied these requests.
Jackson v. Sanofi-Aventis U.S. LLC and Byrd v. Sanofi-Aventis U.S. LLC (In re: Circumstances 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 circumstances, each of them searching for delinquent amendments. The courtroom held that the “good trigger” customary would apply to the proposed amendments as a result of the deadline for amending within the MDL had handed. Making use of the legislation of the case doctrine, the courtroom discovered no motive to disturb the MDL Courtroom’s rejection of the request to get rid of the six-month limitation included within the MDL’s definition of damage. The courtroom additionally 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 way the identical, denying the plaintiff’s movement to amend “[f]or a number of causes.” In that case, plaintiffs leaned exhausting on a stipulation between the events within the MDL concerning the process for amendments, however the Courtroom was not swayed. Nothing about that stipulation excused the plaintiff ready years to amend. One other one bites the mud.
Within the third case, Daddino v. Sanofi US Servs, Inc., 2024 U.S. Dist. LEXIS 47703 (E.D.N.Y. Mar. 18, 2024), the Report & Suggestion was equally unimpressed by the six years that handed from submitting till requesting the modification and adopted the MDL Courtroom’s reasoning. That will be sufficient to disclaim modification, however the Courtroom had a wholly impartial motive: That the modification could be futile. In New York, the three-year statute of limitations runs from the date of discovery of the damage (not prognosis), which implies “discovery of the situation on which the declare was primarily based and nothing extra.” Id. at *35. Plaintiff’s declare was too late, modification or no modification. Assuming it’s adopted, one other good win so as to add to the arsenal of Taxotere rulings denying premature amendments.
