In re Taxotere (Docetaxel) Products Liability Litigation

Dorothy Kuykendall (plaintiff) sued Accord Healthcare, Inc. (Accord) (defendant) alleging that Accord knowingly failed to warn users that its prescription chemotherapy drug Taxotere could cause permanent hair loss. Across the United States, there were approximately 12,000 similar cases pending against Accord, all of which were consolidated in the Eastern District of Louisiana. As part of the multidistrict litigation (MDL) discovery management and streamlining process, the district judge ordered all 12,000 consolidated plaintiffs to complete and submit a plaintiff fact sheet (PFS) within 75 days. The PFS included detailed biographical and medical questions necessary to properly address each claim. If a consolidated plaintiff failed to submit their PFS within the deadline, that plaintiff was entitled to two additional 30-day extensions, each preceded by a required notice of deficiency from Accord. If both 30-day extensions expired without compliance, then the noncompliant consolidated plaintiff would need to justify their noncompliance at a hearing, or their case would be dismissed. Kuykendall failed to submit a timely PFS and was ultimately ordered to appear for a hearing. Because of a court delay, Kuykendall’s case was heard one week after her original hearing date. Between the original hearing date and the adjourn date, Kuykendall submitted a substantially incomplete PFS. The missing information was readily available to Kuykendall, and the court could not move her case forward without it. The court then gave Kuykendall 30 additional days to submit a complete PFS. Kuykendall failed to cure the identified PFS deficiencies within the deadline, and the court dismissed her case with prejudice. After the dismissal, Kuykendall submitted an amended, but still incomplete, PFS along with a letter asking that the dismissal be reconsidered because she was unaware her PFS had been deficient. The district court upheld the dismissal, finding that Kuykendall willfully failed to comply with discovery disclosure requirements. Kuykendall appealed.