The orders denying premature, post-remand makes an attempt to amend complaints within the Taxotere litigation are piling up, and it doesn’t get previous. We not too long ago reported on one such denial within the Northern District of California. In latest weeks, district courts in New York, North Carolina, and Tennessee (amongst others) have joined in. Immediately 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 instances, do no work for years, then have a payday after the management counsel has accomplished all of the work. However on the flipside, they should sleep within the mattress that management made for them.
In our prior put up, 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 harm 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 harm definition within the Grasp Complaints, they put a mint on the pillow by together with this definition of harm of their knowledgeable experiences.
In 2019, three years after the MDL began, the MDL plaintiffs requested depart to amend the Grasp Criticism to remove the six-month a part of the harm definition. The MDL Courtroom denied that request, citing prejudice to defendants and stating that it could undo the work accomplished within the MDL. Undeterred, particular person plaintiffs within the MDL sought depart 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 embrace case-specific allegations impacting the statute of limitations “relating to 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 “harm.”
The plaintiffs within the three instances we focus on at this time didn’t avail themselves of the chance to amend within the MDL. As a substitute, 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 court docket’s ruling on amending the definition of harm. The remand courts have to this point unanimously denied these requests.
Jackson v. Sanofi-Aventis U.S. LLC and Byrd v. Sanofi-Aventis U.S. LLC (In re: Instances 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 instances, each of them in search of delinquent amendments. The court docket held that the “good trigger” commonplace 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 court docket discovered no cause to disturb the MDL Courtroom’s rejection of the request to remove the six-month limitation included within the MDL’s definition of harm. The court docket 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 far 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 relating to 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 & Advice was equally unimpressed by the six years that handed from submitting till requesting the modification and adopted the MDL Courtroom’s reasoning. That might be sufficient to disclaim modification, however the Courtroom had a wholly unbiased cause: That the modification could be futile. In New York, the three-year statute of limitations runs from the date of discovery of the harm (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.
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