Health Law Daily Dismissal of suit upheld after plaintiffs repeatedly fail to meet court-ordered deadlines
Thursday, December 10, 2020

Dismissal of suit upheld after plaintiffs repeatedly fail to meet court-ordered deadlines

By Wolters Kluwer Editorial Staff

Appeals Court reviews dismissal of four consumer suits in case alleging chemotherapy drug caused permanent hair loss in breast cancer patients.

Four consumers in a product liability case appealed after a district court in Louisiana dismissed their suits for failure to comply with case management orders and denied their motions to reconsider. Three of the consumers appealed only the denial of their motions to reconsider, and one consumer appealed both the dismissal and the denial of her motion. The Fifth Circuit found that the district court did not abuse discretion in dismissing the consumers’ suits and denying their motions to reconsider after the consumers repeatedly failed to comply with pretrial orders, despite being given extensions and opportunities to cure (In re: Taxotere (docetaxel) Products Liability Litigation, December 2, 2020, Clement, H.).

Multidistrict litigation. The consumers in the multidistrict litigation (MDL) had been given the chemotherapy drug Texotere®, and/or the generic docetaxel, as part of their treatment plan. They allege that the drug, manufactured by Sanofi-Aventis (Sanofi), caused permanent hair loss and that Sanofi knew this yet failed to warn patients of that side effect. In October 2016, the Judicial Panel on Multidistrict Litigation centralized actions involving these claims and transferred them to the Eastern District of Louisiana.

Pretrial order. The district court issued a series of pretrial orders in an effort to manage filing of claims and discovery. Of note here, Amended Pretrial Order (PTO) No. 22 directed that all plaintiffs must complete and serve upon Sanofi a Plaintiff Fact Sheet (PFS) and medical release authorizations within seventy-five days of the date the plaintiff’s case was docketed. The PFS requested information about which drug had been prescribed and required proof of both use of the drug and the alleged hair loss. Per the PTO, these responses would be treated as answers to interrogatories and production requests under the Federal Rules of Civil Procedure.

If a plaintiff failed to timely submit the PFS and required responsive documents, Sanofi was directed to file a notice of deficiency. The notice triggered a thirty-day window in which the plaintiff was permitted to cure the deficiency. Failure to cure within that window allowed Sanofi to serve a notice of non-compliance on plaintiffs’ counsel. If non-compliance continued after this additional thirty-day period, Sanofi was permitted to add the plaintiff’s name and case number to the "call docket" no later than fourteen days before the next status conference and show cause hearing. Any plaintiff who failed to appear at the call docket and establish good cause for any deficiencies could have her case dismissed with prejudice.

Appeal. The four consumers who brought this appeal all have similar fact scenarios which resulted in the dismissal of their case. In each of the cases, the consumer failed to meet court deadlines for the submission of the documents required by the PTO and were given opportunities to cure the deficiencies. Accordingly, the court dismissed the consumers’ cases with prejudice based on failure to submit a PFS as required by the court. The consumers individually all filed a motion under Federal Rule of Civil Procedure 59(e) or Rule 60(b) The district court denied all motions finding that the consumers had failed to identify any changes in the law, new evidence, or manifest errors warranting reversal of dismissal. Three of the consumers appealed only the denial of their motions to reconsider, and one consumer appealed both the dismissal and the denial of her motion.

Ruling on dismissal. The court reviews matters concerning docket management for an abuse of discretion, and a finding of abuse is found when the ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. The lone consumer that challenged dismissal of her suit set forth two issues: (1) which of two legal standards applies to dismissal as a sanction in MDL, and (2) whether the district court correctly applied the relevant standard in her case. She argued that the court should have undertaken a more fact-intensive six-factor test for dismissal with prejudice, whereas Sanofi asserted that the two-factor test in more appropriate for MDL.

The Fifth Circuit found that the two-factor test is most appropriate for the purposes of managing an MDL as there is need for a standard that gives courts flexibility to dismiss a plaintiff for a discovery violation. This test provides for dismissal when there "a clear record of delay or contumacious conduct by the plaintiff" and "where lesser sanctions would not serve the best interests of justice." Using this standard, the court finds that the district court did not abuse its discretion when it dismissed this consumer’s suit. The court noted that the first prong was met and that the consumer’s PFS was filed almost six months after the due date and contained scant proof-of-use evidence. The consumer was granted opportunities to cure, as well as extensions, and did not fully comply with the court order for more than a year. The court also found that the second prong was met as the district court’s warnings and second chances were unheeded and lesser sanctions would merely delay the district court’s efforts to adjudicate in an expedient manner. As such, the Fifth Circuit found that the district court did not abuse its discretion in dismissing this consumer’s suit.

Ruling on order denying motion. The Fifth Circuit reviewed denial of motions under Federal Rules of Civil Procedure 59(e) and 60(b) for an abuse of discretion and found that the district court did not abuse its discretion in denying the consumers’ motions. The consumers did not (1) cite a change in the controlling law, (2) present newly discovered evidence, or (3) point to a manifest error of law or fact, as required by 59(e). Additionally, the court chose not to provide relief under 60(b) due to "mistake, inadvertence, surprise, or excusable neglect," or "any other reason that justifies relief." The court referred to the repeated delays and deficiencies that plagued the document requests of all four consumers in this ruling and affirms denial of consumers’ Rule 59(e) and 60(b) motions.

The case is No. 19-30631.

Attorneys: John Christopher Elliott (Bachus & Schanker LLC) for Julie Clark. Ilana H. Eisenstein (DLA Piper, L.L.P.) for Sanofi-Aventis, U.S., L.L.C. and Sanofi U.S. Services, Inc., f/k/a Sanofi-Aventis U.S., Inc. Julie A. Callsen (Tucker Ellis LLP) for Accord Healthcare, Inc. John F. Olinde (Chaffe McCall, L.L.P) for Hospira, Inc. and Hospira Worldwide, L.L.C., f/k/a Hospira Worldwide, Inc. Erin M. Bosman (Morrison & Foerster LLP) for McKesson Corp., f/k/a McKesson Packaging. Gregory E. Ostfeld (Greenberg Traurig, LLP) for Sandoz, Inc.

Companies: Sanofi-Aventis, U.S., L.L.C; Sanofi U.S. Services, Inc., f/k/a Sanofi-Aventis U.S., Inc.; Accord Healthcare, Inc.; Hospira, Inc.; Hospira Worldwide, L.L.C., f/k/a Hospira Worldwide, Inc.; McKesson Corp., f/k/a McKesson Packaging; Sandoz, Inc.

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