Many women who undergo chemotherapy for breast cancer treatment expect temporary hair loss. However, a number of women who took the drug Taxotere found their hair did not grow back even after treatment was over. A number of Taxotere users filed lawsuits against the drug company alleging Sanofi-Aventis failed to warn doctors and patients about the increased risks of permanent hair loss. Unfortunately for many of the victims, the courts have continually sided with big pharma over the patients.
Denial of Class Action
One of the biggest hits to potential plaintiffs in the Taxotere cases was the denial of class certification. A class action is a special type of legal claim that involves multiple plaintiffs who have similar claims against the same group of defendants. They are a way to address harms or injuries that would be more difficult or complicated for a single plaintiff to bring. This would effectively give each plaintiff more power to combine as a group against the drug maker instead of trying to take on the large corporation one-by-one.
In 2017, a judge denied the request for class action certification. According to the judge, the claim did not meet all the requirements of a class action. According to the ruling, the court found a number of differing circumstances surrounding the claims, including:
- Whether brand name Taxotere or a generic equivalent was administered;
- What combination of chemotherapy agents was utilized in connection with Taxotere or its generic;
- The dosage of Taxotere or its generic equivalent that was administered;
- The number of treatment cycles that took place;
- The description of the alleged injury; and
- The damages sought.
Loss in Bellwether Case
In one of the first bellwether trials for Taxotere litigation, a jury found that the chemotherapy drug did not cause the patient to develop permanent hair loss. This is disheartening for many people who used the drug and suffered temporary or permanent hair loss and may reduce the likelihood that they will recover damages if they pursue a claim against the drugmaker.
A bellwether case is a trial where the parties test out their arguments to apply to larger groups or class action cases. A win for the plaintiff in this case would have been positive for others who lost their hair after using Taxotere. Instead, the jury found for the drugmaker, Anofi-Aventis US LLC, and the plaintiff did not recover any damages.
Warnings on Label Cover Hair Loss
Almost 200 lawsuits filed by patients claiming Taxotere causes permanent hair loss were dismissed by a federal judge earlier this year. The drugmaker changed the warning label in 2015 to add the risk of hair loss. A federal judge found the updated label was sufficient to warn patients about the risk of permanent hair loss. Many of the patients who used the drug after the update were unable to claim damages for their hair loss based on the warning.
Lawsuits Filed Too Late
Another case was dismissed against the drug, which was to be the second bellwether case, because the plaintiff waited too long to file the lawsuit. A federal court determined the plaintiff had to file the case by January 2011 but the lawsuit was not filed until 2016. In this case, the court found that the extended discovery rule did not apply because the plaintiff suspected her hair was taking too long to regrow at a much earlier date.