Sanofi can't escape second bellwether trial over Taxotere

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REUTERS/Benoit Tessier

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  • Judge finds issue of fact as to whether warning would have changed treatment
  • Second bellwether trial scheduled to begin in August

July 16 - Sanofi has lost a bid for summary judgment in the second bellwether case in multidistrict litigation over its chemotherapy drug Taxotere, after a federal judge ruled that a recent appeals court decision did not change the legal standard for whether Sanofi's conduct caused plaintiff Elizabeth Kahn's permanent hair loss.

U.S. District Judge Jane Triche Milazzo of the Eastern District of Louisiana on Wednesday rejected the drugmaker's motion for reconsideration of her earlier ruling denying summary judgment in the case, clearing the way for it to go to trial next month.

"While we are disappointed with this decision, we welcome the opportunity to present all the facts of this case to a jury," Sanofi, which is represented by Adrienne Byard of Shook, Hardy & Bacon, said in a statement.

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"Plaintiffs' leadership is looking forward to beginning the trial of Ms. Kahn's case on August 23," said Chris Coffin of Pendley Baudin & Coffin, a lawyer for Kahn and other plaintiffs in the MDL.

Sanofi originally sought summary judgment in Kahn's case based on testimony of her doctor, Carl Kardinal, who said he would have recommended Taxotere even if Sanofi had warned that it could cause permanent hair loss.

The company cited Louisiana's "learned intermediary" doctrine, which holds that a drugmaker's duty to warn is to a patient's doctor, not to the patient. Therefore, it said, Sanofi's alleged failure to warn the doctor could not have caused Kahn's hair loss, since the doctor's decision would have been the same.

Milazzo denied that motion. She noted that Kahn testified that if Kardinal had told her about such a risk, she would have asked about other options, and that Kardinal testified that he would have discussed options with Kahn.

Sanofi in April renewed the motion, citing a 5th Circuit U.S. Court of Appeals ruling affirming summary judgment for the company in another case in the MDL. In that case, the court held that "patient choice" was only relevant to the extent that it introduced a question of material fact as to whether the doctor would have made a different prescribing decision if given a warning.

Sanofi argued that order meant Kardinal's testimony -- that his recommendation would have been the same -- was dispositive.

Milazzo, however, said Wednesday that evidence showed the plaintiff in the 5th Circuit case had "put her faith" in her doctor and consented to treatment without asking about her options. Kahn, by contrast, had asked about the possibility of hair loss, and Kardinal had said that he would have discussed other options if Kahn specifically said she did not wish to take Taxotere to avoid permanent hair loss.

More than 12,000 product liability cases are now pending before Milazzo in the multidistrict litigation against drugmakers, including Sanofi, that manufactured and distributed Taxotere or the generic version of the chemotherapy drug, docetaxel. Sanofi is also facing lawsuits in state courts in New Jersey, California, and Delaware, and Mississippi's attorney general has sued it over its marketing of the drug.

In September 2019, a federal jury found in Sanofi's favor in the first bellwether trial in the case.

The case is In re Taxotere (Docetaxel) Products Liability Litigation, U.S. District Court for the Eastern District of Louisiana, No. 16-md-02740.

For Kahn and other plaintiffs: Chris Coffin of Pendley, Baudin & Coffin; Karen Menzies of Gibbs Law Group; M. Palmer Lambert of Gainsburgh Benjamin David Meunier & Warshauer; and Dawn Barrios of Barrios Kingsdorf & Casteix

For Sanofi: Adrienne Byard of Shook, Hardy & Bacon; and Douglas Moore of Irwin Fritchie Urquhart & Moore

Read more:

Warning label change for Sanofi's Taxotere dooms 200 hair loss cases - judge

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.