Plaintiffs Lawyers Want Talk of ‘Lawsuit Abuse’ Out of the 1st Taxotere Trial

By Amanda Bronstad

Plaintiffs lawyers suing over the breast cancer drug Taxotere filed motions this week to ensure that the first bellwether trial against Sanofi-Aventis U.S. LLC is not about them.

“Plaintiff anticipates that Sanofi may attempt to alienate the jury by converting the trial into a referendum on lawful practices by plaintiff attorneys,” wrote lead trial counsel Darin Schanker, of Denver’s Bachus & Schanker, and Rand Nolen, of Fleming, Nolen & Jez in Houston, in a motion filed ahead of a trial scheduled for Sept. 16.

In a separate motion, they also sought to limit “certain irrelevant and unfairly prejudicial matters” about alleged “lawsuit abuse” or “lawyer-driven science,” among other things.

“Defendant may attempt to present argument or evidence suggesting that this lawsuit or litigation as a whole and the science involved is lawyer-driven, fabricated, or exaggerated by counsel who make money through product liability lawsuits,” they wrote.

The motions are the latest in the Taxotere litigation to address controversial issues flagged by tort reformers, such as the influence of lawyer advertising and outside litigation financing on plaintiffs in mass tort cases. In 2017, plaintiffs attorneys threatened sanctions against Sanofi for filing a motion filled with “unfounded accusations” that are “indecent and vexatious” in an attempt to get information on outside funding in the litigation, which now numbers nearly 12,000 lawsuits in federal court in New Orleans, plus hundreds of cases in New Jersey state courts.

Sanofi-Aventis, in a renewed motion filed months later, raised concerns about fee arrangements with doctors, medical screenings of plaintiffs and outside funders that allowed doctors to charge inflated costs on medical liens. Defendants have made similar requests for outside financing disclosures in cases involving blood thinner Xarelto and Johnson & Johnson’s baby powder.

The lawsuits claim Taxotere caused women to suffer permanent hair loss, or alopecia areata—a side effect the U.S. Food and Drug Administration acknowledged in a labeling change in 2015.

In one motion filed this week, plaintiffs lawyers asked to prohibit references to lawyer advertising in the upcoming trial. In another, they wanted a bar on statements about the number of attorneys suing over Taxotere and their financial status, as well as their “means of travel.”

“Permitting counsel and witnesses to interject these improper statements or comment on these matters, thus requiring plaintiff’s counsel to repeatedly object in the presence of the jury, would only serve to draw attention to them and exacerbate the unfair prejudicial impact on plaintiff,” they wrote. “Further, any such testimony would be highly and unfairly prejudicial, and is calculated to do nothing more than inflame jurors and play on their biases about lawyers or the alleged need for tort reform.”

They also sought to limit discussion about payments to their experts and prohibit mention of settlement discussions and plaintiff’s bar training programs, noting, “In today’s world, public suspicion and even disapproval of the professional conduct of plaintiffs’ attorneys is not uncommon.”

Sanofi brought its own motion to prohibit plaintiffs attorneys from bringing up advocacy groups or individuals referred to as “Taxotears.”

Neither Schanker nor Nolen, nor co-lead counsel Christopher Coffin, a partner at Pendley Baudin & Coffin in New Orleans, and Karen Barth Menzies, a Los Angeles partner at Girard Gibbs, responded to a request for comment.

Sanofi lawyers Jon Strongman, of Shook, Hardy & Bacon in Kansas City, Missouri, and Douglas Moore, of New Orleans-based Irwin Fritchie Urquhart & Moore, also did not respond.

In March, U.S. District Judge Jane Milazzo of the Eastern District of Louisiana pushed back the original May 13 trial date for the first bellwether trial to September. She has set additional trials for 2020.