Durden v. Sanofi US Services ( 2021 )

Case: 20-30495 Document: 00515894028 Page: 1 Date Filed: 06/09/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 9, 2021
No. 20-30495 Lyle W. Cayce
Clerk
In re: Taxotere (Docetaxel) Products Liability
Litigation
______________________________
Antoinette Durden,
Plaintiff—Appellant,
versus
Sanofi U.S. Services, Incorporated; Sanofi-Aventis,
U.S., L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-MD-2740
USDC No. 2:16-CV-16635
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Before Jolly, Duncan, and Oldham, Circuit Judges.
Per Curiam:*
This appeal requires us to decide whether a breast-cancer survivor,
Antoinette Durden, timely filed a lawsuit against Sanofi U.S. Services, Inc.
and Sanofi Aventis U.S., L.L.C. (together, Sanofi), the makers of a
chemotherapy drug called Taxotere. Durden says she suffers from
permanent, chemotherapy-induced alopecia caused by Taxotere, and she
insists Sanofi failed to warn that its drug could cause permanent—rather than
only temporary—hair loss. But she was slow to sue. She waited more than
four years after she began to suffer permanent, chemotherapy-induced
alopecia. Noting the delay, the district court entered summary judgment
dismissing Durden’s claims as barred by Louisiana’s one-year prescriptive
period for delictual actions. Durden appeals. Guided by a recent opinion that
resolves many of the issues before us, In re Taxotere (Docetaxel) Products
Liability Litigation (Thibodeaux), 995 F.3d 384 (5th Cir. 2021), we AFFIRM.
I.
Sanofi manufactures Taxotere, a chemotherapy drug administered to
women who suffer from breast cancer. The Food and Drug Administration
first approved Taxotere in 1996. Although the drug’s label mentioned “hair
loss” as a possible side effect, the label did not mention permanent hair loss
until December 2015. That month, the label was changed to include the
statement that “cases of permanent hair loss have been reported.”
Some cancer survivors reported permanent hair loss after receiving
chemotherapy treatment using Taxotere. Thousands of them sued Sanofi
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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after seeing lawyer ads tying Taxotere to permanent hair loss. They claimed
Sanofi had failed to warn that permanent hair loss was a side effect of
Taxotere.
The Judicial Panel on Multidistrict Litigation transferred many of
these lawsuits to the Eastern District of Louisiana for coordinated pretrial
proceedings, creating MDL 2740. To streamline this multidistrict litigation,
the district court directed the plaintiffs to file a master complaint collectively
and to file short-form complaints individually. The master complaint
contains allegations common to all plaintiffs, and the short-form complaint
contains allegations specific to each plaintiff. According to the master
complaint, Taxotere causes permanent, chemotherapy-induced alopecia.
The master complaint defines permanent, chemotherapy-induced alopecia
as “an absence of or incomplete hair regrowth six months beyond the
completion of chemotherapy.”
Antoinette Durden is one of many cancer survivors who claim
permanent, chemotherapy-induced alopecia caused by Taxotere. Durden
received chemotherapy treatment using Taxotere from October 2011 to
February 2012. She knew she would lose her hair during chemotherapy, but
she did not know the hair loss would be permanent. Before she started
chemotherapy, her oncologist told her that hair loss was a potential side
effect. She also signed a consent form; it informed her that her chemotherapy
regimen would consist of two drugs, Taxotere and Cytoxan, and it identified
“[h]air loss” as one of the “possible risks and discomforts” of treatment.
Durden lost much of her hair during chemotherapy. She remained
bald for two years. Concerned that her hair had not regrown, Durden
contacted her oncologist and dermatologist. She spoke with her oncologist
about two months after finishing chemotherapy, in April or May 2012. They
discussed that, if Durden’s hair had not grown back, “it’s likely not going to
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come back.” Durden did not ask which of the two chemotherapy drugs
caused her hair loss, but Durden and her oncologist did discuss that
chemotherapy was the reason Durden’s hair had not regrown.
In February or March 2014, about two years after completing
chemotherapy, Durden noticed “little strings of hair” growing on the sides
of her head. That hair continued to grow back, though thinner than before.
Durden still has only “little strings” on the top of her head. She learned that
Taxotere may cause permanent hair loss in 2016, when she saw a lawyer ad
on television.
II.
Durden sued Sanofi on November 29, 2016. Her short-form
complaint adopted the allegations of the master complaint, including the
definition of permanent, chemotherapy-induced alopecia. In her short-form
complaint, Durden described her injury as “[p]ermanent, irreversible and
disfiguring alopecia beginning after treatment with Taxotere.” Durden also
completed a plaintiff-specific “fact sheet,” identifying March 2012 as the
date she began to experience the injury.
After some discovery, Sanofi moved for summary judgment
dismissing Durden’s claims as barred by Louisiana’s one-year prescriptive
period for “delictual actions,” which runs from “the day injury or damage is
sustained.” La. Civ. Code Ann. art. 3492. Sanofi contended that
Durden’s claims were prescribed on the face of her complaint and that
Louisiana’s equitable doctrine of contra non valentem did not suspend the
prescriptive period and save Durden’s otherwise time-barred claims.
Durden of course disagreed. She rejoined that the one-year prescriptive
period did not begin to run until 2016, when she saw an ad linking Taxotere
to permanent hair loss. At the very least, she insisted, factual disputes about
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the reasonableness of her actions—and thus the applicability of contra non
valentem—precluded summary judgment.
The district court sided with Sanofi, granting summary judgment
dismissing Durden’s claims as barred by the one-year prescriptive period. Its
analysis proceeded in two parts.
First, the district court held that Durden’s claims were prescribed on
the face of the pleadings. The district court calculated the date of Durden’s
injury using the master complaint’s definition of permanent, chemotherapy-
induced alopecia: incomplete hair regrowth six months post-chemotherapy.
Using this definition, the district court concluded that Durden’s “injury
manifested itself” in August 2012, six months after she completed
chemotherapy. The district court also looked to Durden’s plaintiff-specific
“fact sheet,” in which Durden said she began to suffer persistent alopecia in
March 2012. Tacking six months on to that date, Durden’s injury occurred,
at the latest, in September 2012. Because Durden did not file suit until
November 2016, the district court concluded that Durden’s claims were
facially prescribed regardless of whether her injury occurred in August 2012
or September 2012.
Second, the district court held that Durden had failed to create a
genuine dispute on contra non valentem. That doctrine did not save Durden’s
untimely claims because Durden did not act reasonably to discover the cause
of her permanent hair loss. Durden had “enough notice to call for an
inquiry” into the cause of her permanent hair loss because, among other
reasons, her oncologist told her that, if her hair had not regrown, “it’s likely
not going to come back.” Durden “suspected something was wrong and yet
failed to investigate its cause,” the district court added.
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Given these conclusions, the district court entered judgment
dismissing Durden’s claims as barred by the one-year prescriptive period.
Durden timely appeals.
III.
We review the district court’s summary judgment de novo, applying
the same legal standards as that court. See Ahders v. SEI Priv. Tr. Co., 982
F.3d 312, 315 (5th Cir. 2020). Summary judgment shall be granted “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome
of the suit.” Id. We view the evidence in the light most favorable to Durden
and draw all reasonable inferences in her favor. See Ahders, 982 F.3d at 315.
Under Louisiana law, “delictual actions” are subject to a liberative
prescription of one year. La. Civ. Code Ann. art. 3492. Cases brought
under the Louisiana Products Liability Act, like Durden’s here, are
“delictual actions” subject to Article 3492’s one-year prescriptive period.
See Marable v. Empire Truck Sales of La., LLC, 2016-0876 (La. App. 4 Cir.
6/23/17); 221 So. 3d 880, 889. This period “commences to run from the day
injury or damage is sustained.” La. Civ. Code Ann. art. 3492. The
burden of proving prescription “is normally on the party pleading
prescription.” Younger v. Marshall Indus., Inc., 618 So. 2d 866, 869 (La.
1993). If “on the face of the petition it appears that prescription has run,”
however, “the burden shifts to the plaintiff to prove” a suspension of
prescription under Louisiana’s equitable doctrine of contra non valentem. Id.Durden contends the district court misapplied this burden-shifting
rule in the summary-judgment context. We have recognized that some
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question lingers “as to whether this burden-shifting rule applies at a motion
for summary judgment.” Thibodeaux, 995 F.3d at 389 (citing Trahan v. BP
Am. Prod. Co., 2016-267 (La. App. 3 Cir. 12/7/16); 209 So. 3d 166, 170). But
we “le[ft] the question unanswered” in Thibodeaux “because no party argued
in the district court or here that, if the claims were facially prescribed, the
burden remained with the defendant.” Id.We too will leave the question unanswered. It is true that, unlike in
Thibodeaux, the plaintiff here, on appeal, urges us to reverse on the basis that
the district court misapplied the burden-shifting framework governing
prescription at the summary-judgment stage. But here, as in Thibodeaux, the
argument simply was not preserved: In the district court, Durden made no
argument that on summary judgment the burden remains with the defendant,
even when the plaintiff’s petition is prescribed on its face. In fact, Durden
endorsed Sanofi’s view of how the burden-shifting framework operates at
summary judgment. So we decline to consider the burden-shifting argument
raised for the first time on appeal. See Estate of Duncan v. Comm’r, 890 F.3d
192, 202 (5th Cir. 2018) (“This court will not consider arguments first raised
on appeal[.]”).
Having laid out the applicable law of prescription, we turn to consider
Durden’s arguments that the district court erred in holding that the one-year
prescriptive period barred her claims.
IV.
In addressing whether Durden timely filed her lawsuit against Sanofi,
we proceed in two steps. First, we ask whether Durden’s claims are facially
prescribed. We conclude they are. Second, we ask whether contra non
valentem suspends prescription and saves Durden’s otherwise untimely
claims. We conclude it does not.
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A.
The one-year prescriptive period began to run when Durden
“sustained” “injury or damage.” La. Civ. Code Ann. art. 3492.
Thibodeaux controls our analysis of what constitutes the “injury or damage”
and when that “injury or damage” was “sustained.” See 995 F.3d at 390.
We there defined the “injury or damage” in accord with the master
complaint’s definition of permanent, chemotherapy-induced alopecia: “an
absence of or incomplete hair regrowth six months beyond the completion of
chemotherapy.” Id. After so defining the “injury or damage,” we held that,
“[a]s a matter of law, the injury of ‘an absence of or incomplete hair regrowth
six months beyond the completion of chemotherapy’ is sustained when, six
months after the completion of chemotherapy, a person has an absence of or
incomplete hair regrowth.” Id.
As relevant here, Durden completed chemotherapy treatment in
February 2012. By August 2012, six months after the completion of
chemotherapy, Durden “knew [her] hair loss had persisted for that length of
time.” Id. Under Thibodeaux, Durden “sustained” the “injury or damage,”
La. Civ. Code Ann. art. 3492, that started the running of the one-year
prescriptive period in August 2012, when her hair had not fully regrown. See
id. Because Durden filed this lawsuit in November 2016, more than four
years after she was injured, her claims are prescribed on the face of her
pleadings.
Having concluded that Durden’s claims are facially prescribed, we
must next decide whether contra non valentem suspends the prescriptive
period and saves Durden’s otherwise time-barred claims.
B.
Contra non valentem is a court-created “exception to prescription”
that “mitigate[s] the occasional harshness” of prescriptive periods. Prevo v.
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State ex rel. Dep’t of Pub. Safety & Corrs. Div. of Prob. & Parole, 2015-0823 (La.
11/20/15); 187 So. 3d 395, 398 (per curiam) (citing Carter v. Haygood, 2004-
0646 (La. 1/19/05); 892 So. 2d 1261). The doctrine “is based on the
equitable notion that no one is required to exercise a right when it is
impossible for him or her to do so.” Id. (citing Harvey v. Dixie Graphics, Inc.,
593 So. 2d 351, 354 (La. 1992)). But it “only applies in ‘exceptional
circumstances.’” Renfroe v. State ex rel. Dep’t of Transp. & Dev., 2001-1646
(La. 2/26/02); 809 So. 2d 947, 953 (quoting La. Civ. Code Ann. art.
3467 Official Revision Comment (d)). The Supreme Court of Louisiana has
recognized four such circumstances:
(1) where there was some legal cause which prevented the
courts or their officers from taking cognizance of or acting on
the plaintiff’s action; (2) where there was some condition
coupled with the contract or connected with the proceedings
which prevented the creditor from suing or acting; (3) where
the debtor himself has done some act effectually to prevent the
creditor from availing himself of his cause of action; or (4) where
the cause of action is neither known nor reasonably knowable by the
plaintiff even though the plaintiff’s ignorance is not induced by the
defendant.
Id. (emphasis added). Durden contends the fourth category of contra non
valentem saves her otherwise untimely claims.
The fourth category is often called the “discovery rule.” See Marin v.
Exxon Mobil Corp., 2009-2368 (La. 10/19/10); 48 So. 3d 234, 245. It will not
suspend prescription past the point when the plaintiff has constructive
notice, Cartwright v. Chrysler Corp., 232 So. 2d 285, 287 (La. 1970), which
has been defined as “whatever notice is enough to excite attention and put
the injured party on guard and call for inquiry,” Campo v. Correa, 2001-2707
(La. 6/21/02); 828 So. 2d 502, 510–11. “That means prescription runs ‘from
the time there is notice enough to call for inquiry about a claim, not from the
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time when the inquiry reveals facts or evidence sufficient to prove the
claim.’” Thibodeaux, 995 F.3d at 391 (quoting Terrel v. Perkins, 96-2629 (La.
App. 1 Cir. 11/7/97); 704 So. 2d 35, 39).
We established in Thibodeaux how the fourth category of contra non
valentem applies in precisely the circumstances presented here. Id. at 390–
95. The fourth category of contra non valentem, we explained, would suspend
the prescriptive period “until the point when a prospective plaintiff through
the exercise of reasonable diligence should have ‘considered [Taxotere] as a
potential root cause of’ her injury.” Id. at 392–93 (alteration in original)
(quoting Oil Ins. Ltd. v. Dow Chem. Co., 2007-0418 (La. App. 1 Cir. 11/2/07);
977 So. 2d 18, 23). To determine when a plaintiff should have considered
Taxotere as “a potential root cause,” we looked to “key information”
contained in the master complaint—the same complaint Durden adopted
here. Id. at 393–94. That information included:
• In 2006, women who claimed they experienced
permanent hair loss caused by Taxotere formed an
online support group called “Taxotears.”
• In late 2006, Dr. Scot Sedlacek, an oncologist,
presented a study entitled, “Persistent significant
alopecia (PSA) from adjuvant docetaxel after
doxorubicin/cyclophosphamide (AC) chemotherapy in
women with breast cancer.” According to the study,
6.3% of patients who received docetaxel experienced
persistent significant alopecia, while none of the women
in the groups without docetaxel did.
• In 2010, a Canadian newspaper published an online
article entitled, “Women who took chemo drug say they
weren’t warned of permanent hair loss.”
• Just two days later, in 2010, CBS News published an
online article entitled, “Sanofi’s Latest Challenge:
Women Who Say Its Chemotherapy Left Them
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Permanently Bald,” which cited other studies that
noted permanent hair loss after taking Taxotere and
referenced the “Taxotears” group.
• Later in 2010, dermatologist Ben Talon and others
published an article entitled, “Permanent
chemotherapy-induced alopecia: Case report and
review of the literature,” which links docetaxel to
permanent, chemotherapy-induced alopecia.
• In 2009, 2011, and 2012, articles published in the British
Journal of Dermatology, the American Journal of
Dermatopathology, and the Annals of Oncology,
respectively, linked permanent hair loss among breast-
cancer patients to docetaxel chemotherapy.
Based on this “key information,” we found “that Taxotere as a
possible cause of the persistent hair loss was not an obscure possibility.” Id.at 393–94. Rather, “diligence required that Taxotere be explored as a
possible explanation” for each plaintiff’s persistent hair loss. Id. at 394.
Because the plaintiffs had “made no inquiry” into Taxotere as a “possible
explanation” for their persistent hair loss, they had “not act[ed] reasonably
in light of their injuries,” and contra non valentem’s fourth category did not
suspend prescription. Id.It is obvious that Thibodeaux does not bode well for Durden’s appeal.
Applying that decision, we must conclude that Durden failed to raise a
genuine dispute as to the fourth category of contra non valentem. Like the
plaintiffs in Thibodeaux, Durden never “explored” Taxotere “as a possible
explanation” for her persistent hair loss. Id. She “needed to investigate
Taxotere as a potential cause,” id. at 393, but failed altogether to do so. Had
she conducted a reasonable inquiry, she would “have uncovered at least
some information that linked Taxotere to persistent alopecia.” Id. at 394.
She had enough notice “to excite [her] attention” and “call for inquiry,”
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Campo, 828 So. 2d at 510–11, as early as April or May 2012, when her
oncologist told her that, since her hair had not regrown, “it’s likely not going
to come back.” 1 Further, any argument that the facts supporting her cause
of action were not reasonably knowable is foreclosed by Thibodeaux, where
we held that the very same causes of action were reasonably knowable by
October 2015. 2 Id. at 393–95.
For her part, Durden acknowledges Thibodeaux but attempts to
minimize its application. We note that Thibodeaux was decided after the close
of briefing. To that end, Sanofi filed a Federal Rule of Appellate Procedure
28(j) letter directing our attention to the decision, and Durden filed a
response. In her response, Durden offers four reasons why, in her view, this
case differs from that one. None persuades.
First, Durden contends that this case is different because “four
doctors said [her hair] would grow back,” but this contention finds no
support in the record. There is no evidence that any doctor told Durden that
her hair would fully regrow after the six-month-post-chemotherapy injury
1
During her deposition, Durden testified that, around January 2014, her
dermatologist told her that her hair loss was “probably” going to be “permanent.”
Towards the end of the deposition, however, Durden changed that testimony in response
to her attorney’s suggestion that it might have been “an error.” Durden then testified that,
until 2016, no one had told her that her hair loss was permanent. This changed testimony
does not necessarily conflict with the testimony of Durden’s oncologist, who did not testify
to telling Durden, definitively, that her hair loss was permanent. Rather, the oncologist
testified to telling Durden (in April or May 2012) that her hair was “likely not going to
come back.”
2
The three lawsuits discussed in Thibodeaux were filed on October 14, 2016,
October 26, 2016, and December 14, 2016, respectively. See 995 F.3d at 389 n.2. We said
the causes of action in those lawsuits were “‘reasonably knowable in excess of one year
prior to [their] filing’ suit.” Id. at 395 (alteration in original) (quoting Fontenot v. ABC Ins.
Co., 95-1707 (La. 6/7/96); 674 So. 2d 960, 965). So we have necessarily noted that the link
between Taxotere and persistent alopecia was reasonably knowable by October 14, 2015,
one year prior to the filing of the earliest-filed lawsuit. See id.12
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mark. The only evidence to which Durden has directed our attention that is
even remotely supportive of the assertion is Durden’s deposition testimony
that “[t]hey always say it’s going to be temporary,” and “[t]hey never told
me anything about this was going to be permanent.” It is not clear who
“they” are or when “they” made the statements Durden describes.
Regardless, this vague testimony does not come close to establishing that four
doctors told Durden her hair would grow back, and it does not distance this
case from Thibodeaux.
Second, Durden contends this case is different because her “doctors”
“misdiagnosed her with conditions like ‘female pattern hair loss.’” It is true
that one of Durden’s doctors—a dermatologist—diagnosed Durden with
“alopecia . . . and scarring alopecia[,] likely the component of female pattern
hair loss,” but it is not clear why that diagnosis makes a relevant difference.
There is no evidence that any doctor told Durden that her persistent hair loss
was singularly attributable to “female pattern hair loss” to the exclusion of
other potential causes. To the contrary, the record reflects that Durden and
her oncologist discussed (in April or May 2012) chemotherapy as the reason
Durden’s hair had not regrown. What is more, there is no evidence that
Durden herself reasonably believed that her persistent hair loss was caused
by “female pattern hair loss.” Durden failed to consider Taxotere as a
potential cause of her persistent hair loss because she engaged in no
reasonable inquiry to determine Taxotere’s effects on the persistent loss of
her hair.
Third, Durden contends this case is different because the hair on the
sides of her head regrew over the years. But two of the Thibodeaux plaintiffs
also experienced partial hair regrowth. See 995 F.3d at 387–88. The partial
regrowth of their hair did not relieve them of the obligation to engage in a
“reasonable inquiry into the cause of [their] persistent hair loss.” Id. at 393.
So too here. Durden knew that after her chemotherapy treatment, her hair
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was not regrowing, and therefore “had an obligation to further investigate
the facts in order to pursue [her] claim before the one-year prescriptive
period elapsed.” Rozas v. Dep’t of Health & Hum. Res., 522 So. 2d 1195, 1197
(La. Ct. App. 1988). She failed to do so.
Finally, Durden contends that “[s]he did a lot of research” indicating
that her “hair was going to come back.” To be sure, Durden testified that
she “did” “a lot of” unspecified “research” regarding the permanency of her
hair loss. But the record contains no evidence that Durden “did” any
investigation or study regarding the cause of her persistent hair loss.
“[D]iligence required” her to “explore[]” Taxotore as a “possible
explanation,” Thibodeaux, 995 F.3d at 394, and it is undisputed that she did
not do so.
In sum, Durden did not act reasonably in the light of her injuries, and
the fourth category of contra non valentem does not save her claims. 3
V.
In this opinion, we have held that the district court did not err in
granting summary judgment dismissing Durden’s claims as barred by
Louisiana’s one-year prescriptive period for delictual actions. The district
court correctly concluded that Durden’s claims were prescribed on the face
3
Durden also contends that she is entitled to suspension of the prescriptive period
under the third category of contra non valentem. That category applies “where the
[defendant] himself has done some act effectually to prevent the [plaintiff] from availing
himself of his cause of action.” Renfroe, 809 So. 2d at 953. Sanofi’s alleged attempts to
conceal the link between Taxotere and permanent hair loss did not prevent Durden from
availing herself of her causes of action; a reasonable inquiry would have uncovered all of
the information Durden needed. See Thibodeaux, 995 F.3d at 395 (reasoning that the third
category of contra non valentem was “inapplicable” because “a reasonable inquiry would
have led to the information needed”).
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of the pleadings and that contra non valentem did not save them. Accordingly,
the judgment of the district court is, in all respects,
AFFIRMED.
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