Sanofi-Aventis’s Taxotere was hailed as an innovation when it was approved by the Food and Drug Administration in 1996 to treat breast cancer. But now lawsuits over an unpleasant side effect are leading to a different kind of innovation, this one aimed at speeding up mass litigation.
In what the legal community dubbed an “unusual move,” the Eastern District Court of Louisiana appointed nine lawyers to discuss settling the Taxotere product liability lawsuit apart from trial proceedings in multidistrict litigation (MDL) concerning hundreds of permanent hair loss or alopecia complaints.
Taxotere plaintiffs claim the drug is more likely to result in permanent hair loss than other, equally effective medications, according to a statement from the Bernstein Liebhard law firm. While Taxotere has been on the market since 1996, its U.S. labeling was updated only in December 2015 to note that cases of permanent alopecia had been reported. However, information regarding the potential side effect was provided to doctors and patients in Europe as early as 2005 while the Canadian label was updated in 2012.
The size of the plaintiff pool prompted Judge Kurt D. Engelhardt to appoint the two settlement committees, one each for the plaintiffs and defendant. Settlement committees are becoming a trend among MDL/mass tort judges, according to Ben W. Gordon Jr., who is chair of the Plaintiff Settlement Committee for Taxotere.
What’s unusual about Judge Engelhardt’s maneuver is that it occurred at such an early stage of the litigation in a pretrial order dated Dec. 13, which was entered following the very first status conference. Settlement committees typically come together later in legal proceedings after months and even years of protracted discovery proceedings and sometimes not until after trials have occurred.
Gordon added that this move is “fairly groundbreaking” and already catching the notice of other federal judges handling consolidated mass tort proceedings.
“Experienced mass tort judges and litigators often recognize that the only way for the parties and the court to efficiently exit a large mass tort is to seek global resolution,” Mr. Gordon told PacerMonitor. “Appointing settlement committees early in the litigation is reflection of that reality.”
It is a move that observers shouldn’t interpret as a surrender by plaintiffs.
“The defendant is not throwing in the towel at the inception or saying that trials need not occur to help value damages, but the decision to assign settlement committees recognizes that we cannot try all the cases when there are thousands of plaintiffs impacted by a mass tort,” said Mr. Gordon.
Drugmakers also have an interest in speeding up litigation.
“If there’s no argument against causation, it’s in the interest of the drugmaker from a social, political and public relations standpoint to step up if it really is responsible,” said Gregg Bertram, an attorney and mediator in Seattle.
Lawyers on both sides typically retain experts who will testify at trial or merely consult, but so far attorneys in the Taxotere case have not objected to the appointment of pretrial settlement committees.
“It’s important to understand that this litigation is in its earliest stages and that there is no guarantee that the establishment of these committees will lead to any Taxotere settlements however this development is certainly encouraging,” said Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a law firm that offers free case reviews to breast cancer patients and others whose hair failed to grow back following chemotherapy with Taxotere.
When a settlement of the case occurs occurs too early in the litigation process, it can leave plaintiff’s attorneys open for claims of legal malpractice.
The assigned settlement committees are ordered to hold regular discussions in an attempt to establish common understandings, potential ground rules, component parts and concepts, anticipated relief, necessary approvals, and ultimately financial details.
Although settlement committees are often enlisted to alleviate an overburdened court system, there can be downsides when defendants want to offer a lump sum for global resolution to all plaintiffs. Lawyers face a conflict of interest when they have more than one client at different stages of life.
“Awarding damages is where there may be vastly different degrees of impasse, assuming that this drug, in fact, has caused the hair loss that’s claimed and that it’s permanent,” said Mr. Bertram.
Currently, some 837 product liability cases are pending in federal court in Louisiana and more are expected. On Feb. 10, the court ordered plaintiffs’ counsel to submit a Master Complaint and Short Form Complaint.
“The Master Complaint will include all allegations common to Taxotere lawsuits, while the individual Short Form Complaints will set forth certain claims from the Master Complaint as they relate to individual plaintiffs,” Mr. Liebhard stated in a press release. “Adoption of the Master and Short Form Complaints will promote judicial efficiency and streamline the process for filing cases in the federal multidistrict litigation.”
Without such assertive legal action on the part of judges, mass tort cases can languish for years longer than necessary.
“This only makes the case harder, longer and more expensive for everyone involved,” said Mr. Gordon.