Products Liability Law Daily Discovery rule did not restore chemotherapy-related hair loss claims
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Monday, June 14, 2021

Discovery rule did not restore chemotherapy-related hair loss claims

By Pamela C. Maloney, J.D.

A cancer patient who waited more than four years to sue the makers of a chemotherapy drug that allegedly caused permanent hair loss failed to show how the discovery rule applied to her claims.

Louisiana’s one-year prescriptive period for delictual actions barred claims by a breast cancer survivor who alleged that the manufacturers of the chemotherapy drug, Taxotere, failed to warn that it could cause permanent hair loss, the U.S. Court of Appeals for the Fifth Circuit ruled, noting that the survivor had waited more than four years after she learned her hair loss was permanent to file her lawsuit. In affirming the lower court’s decision, the Fifth Circuit agreed that because the facts supporting her cause of action were reasonably knowable by October 2015, the breast cancer survivor failed to raise a question of fact as to whether the discovery rule applied to delay the running of the prescriptive period (In re: Taxotere (Docetaxel) Products Liability Litigation (Durden v. Sanofi U.S. Services, Inc.) , June 9, 2021, per curiam).

A breast cancer survivor who received chemotherapy treatment using Taxotere from October 2011 to February 2012 experienced permanent, chemotherapy-induced alopecia. Alleging that her hair loss was caused by the chemotherapy drug, she filed a products liability lawsuit against the manufacturers of the drug—Sanofi U.S. Services, Inc. and Sanofi-Aventis, U.S., LLC—in 2016, claiming that the companies had failed to warn that the drug could cause permanent rather than only temporary hair loss. Sanofi moved for summary judgment on the ground that the survivor’s claims were barred by Louisiana’s one-year prescriptive period for delictual actions and that the state’s equitable doctrine of contra non valentem did not suspend the running of the prescriptive period. The district court granted the motion and the Fifth Circuit affirmed, based on its recent decision in In re Taxotere (Docetaxel) Products Liability Litigation (Thibodeaux) [see Products Liability Law Daily’s April 22, 2021 analysis].

Statute of limitations. The one-year prescriptive period began to run when the breast cancer survivor sustained injury or damage. In Thibodeaux, the master complaint had defined the injury or damage in this case—permanent, chemotherapy-induced alopecia—as the absence of or incomplete hair regrowth six months beyond the completion of chemotherapy. The breast cancer survivor completed chemotherapy in February 2012 and, according to her plaintiff-specific fact sheet, she identified March 2012 as the date she began to experience the injury. By August 2012, the breast cancer survivor knew that her hair loss had persisted for six months, which started the running of the one-year prescriptive period. Thus, her lawsuit in November 2016, which was filed more than four years after she was injured, was time-barred on the face of the pleadings.

Discovery rule. Under contra non valentem, Louisiana courts recognize four exceptions to the prescription period, including the discovery rule. Under the discovery rule, the prescription period is suspended until a plaintiff, through the exercise of reasonable diligence, has constructive notice of a claim. To determine whether the breast cancer survivor should have considered Taxotere as a potential root cause of her injury, the Fifth Circuit again looked to the key information contained in the master complaint, which the breast cancer survivor adopted in her pleadings. That key information included: (1) the 2006 formation of an online support group of women who claimed that they had experienced permanent hair loss caused by Taxotere; (2) a late 2006 study showing that 6.3 percent of patients who received docetaxel experienced persistent significant alopecia, while none of the women in the groups without docetaxel did; (3) a 2010 online article published by a Canadian newspaper entitled, "Women who took chemo drug say they weren’t warned of permanent hair loss"; (4) a 2010 online article by CBS News entitled, "Sanofi’s Latest Challenge: Women Who Say Its Chemotherapy Left Them Permanently Bald," which cited other studies noting permanent hair loss after taking Taxotere and referencing the online support group; (5) articles published in the British Journal of Dermatology, the American Journal of Dermatopathology, and the Annals of Oncology, respectively, in 2009, 2011, and 2012, all of which linked permanent hair loss among breast cancer patients to docetaxel chemotherapy; and (6) a 2010 article published by dermatologist Ben Talon and others linking docetaxel to permanent, chemotherapy-induced alopecia.

According to the Fifth Circuit, this information was enough to establish that Taxotere as a possible cause of persistent hair loss was not an obscure possibility. Thus, the breast cancer survivor was required to investigate Taxotere as a possible explanation for her hair loss. Had she conducted a reasonable inquiry, which she failed to do, she would have uncovered at least some information that linked the drug to her injury. Her attempts to distinguish Thibodeaux from her case based on claims that her doctors told her that her hair would grow back, misdiagnosis of her condition, regrowth of hair on the side of her head, and the fact that she did a lot of research which indicated her hair would grow back were insufficient explanations for failing to explore Taxotere as a possible cause of her hair loss. Thus, the discovery rule did not apply to save her claims.

The case is No. 20-30495.

Attorneys: Matthew Palmer Lambert (Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC) for Antoinette Durden. Ilana H. Eisenstein (DLA Piper, LLP) for Sanofi US Services Inc. and Sanofi-Aventis, U.S., LLC.

Companies: Sanofi U.S. Services Inc.; Sanofi-Aventis, U.S., LLC.

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