Louisiana Taxotere MDL Moves Forward
As of June 2017, over 1,100 Taxotere injury cases have been condolidated for pretrial purposes in the Eastern District of Louisiana, and noted women’s health attorney Marie Napoli predicts that they will settle soon and on plaintiff-friendly terms.
In less than a year, the docket has mushroomed from 33 cases to 1,116. So far, U.S. DIstrict Judge Kurt Engelhardt has supervised early pretrial matters, mostly dealing with parties and claims. For example, Judge Engelhardt has released three defendants who either did not manufacture docetaxel (brand name Taxotere) or manufactured it after the date the plaintiffs were allegedly injured. Discovery will take place during the summer and into the early autumn, which probably means that the first bellwether trial may be in November or December 2017.
Below, attorney Marie Napoli addresses two of the most commonly-asked questions about Taxotere injury lawsuits.
Do I Have a Claim?
Like all dangerous drug cases, the strength of a Taxotere claim largely depends on the product’s backstory, the evidence in that particular case, and the company’s behavior. If anyone knows how to evaluate claims in these matters, it’s Marie Napoli. Because of her expertise in this area, she recently joined a key steering committee for plaintiffs’ lawyers. When it comes to Taxotere injury claims, all the lights are green.
Taxotere is one of the most powerful chemotherapy drugs on the market, so it is also one of the most widely-prescribed drugs, especially in breast cancer and other aggressive cancer cases. Like most other chemotherapy drugs, docetaxel is a semi-selective, tissue-destroying drug that is toxic to all dividing cells in the body. That includes tumor cells, bone marrow, and hair folicles.
Weaker chemotherapy drugs cause temporary alopecia in many cases, and when the toxins exit the system, hair begins to regrow. According to Marie Napoli, permanent alopecia is a common Taxotere injury because the toxins linger in the body even after the patient stops taking the drug. Many times, if hair does grow back, it is vellus hair (peach fuzz) instead of the normal folicles.
One recent study concluded that permanent alopecia is a side effect in over 9 percent of cases, a figure that makes this Taxotere injury “common and frequent” according to most classification systems.
So much for the backstory. Now, on to the evidence in the case.
The plaintiff has the burden of proof in negligence cases, and in defective drug matters, that means expert witnesses. New Yorkers have an edge in this area, because courts in the Empire State use the more relaxed Frye standard, as opposed to the more stringent Daubert standard, when evaluating expert witnesses. Daubert, which is the majority rule, subjects experts to a rigorous, multi-point test, and if the expert does not pass each point with flying colors, the judge will not allow the expert to testify. In contrast, under the Frye standard, experts basically need only have opinions that are medically acceptable and useful to the jury.
Marie Napoli says that the third area is essentially a “why” question, as in “Why did the company sell a drug they knew to be dangerous?” The answer is nearly always money. It costs about $2.5 billion to take a drug from the drawing board to Food and Drug Administration approval. At the same time, drug patents only last twenty years. Since the clock begins ticking when the drug is developed and not when it is first sold, time is short.
The bottom line is that the drug company has to sell a lot of pills in a short window of time, and any information about Taxotere injury depresses sales.
What is Multidistrict Litigation?
Like most other plaintiffs’ attorneys, Marie Napoli believes that MDL is a good thing for victims.
Many mass tort cases, including the Takata airbag suits and most other defective consumer product cases, are class actions, since the facts are pretty much all the same. Medical product defect cases are usually not class actions, because although the cases are reasonably similar, they are not substantially similar under the law. However, it is highly inefficient to try these cases piecemeal in different jurisdictions.
That’s where MDL comes in. Taxotere injury cases, and other such matters, are consolidated for pretrial purposes. So, the judge has specialized knowledge and the plaintiffs can pool their resources. Furthremore, once one case settles, the effect is like a row of toppling dominoes.
Rules vary by jurisdiction, but in most cases, if the cases do not settle, they return to their original locations for trial.