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In re Taxotere Docetaxel Products Liability Litigation

United States District Court, E.D. Louisiana

December 20, 2018

IN RE TAXOTERE DOCETAXEL PRODUCTS LIABILITY LITIGATION This document relates to Kelly Gahan

         SECTION: “H” (5)

          ORDER AND REASONS

          JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Kelly Gahan's Motion for Reconsideration of Court's Order Granting in Part Sanofi's Motion for Rule 37 Sanctions (Doc. 4201). For the following reasons, the Motion is DENIED.

         BACKGROUND

         For a discussion of the facts relevant to this dispute, see the Court's Order and Reasons dated August 22, 2018 (Doc. 3917).

         LEGAL STANDARD

         A Motion for Reconsideration of an interlocutory order is governed by Federal Rule of Civil Procedure 54(b).[1] “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.'”[2]

         LAW & ANALYSIS

         The goal of the multidistrict litigation process is to “promote the just and efficient conduct” of “civil actions involving one or more common questions of fact” that are pending in different districts.[3] If realized, hundreds or thousands of cases “will proceed toward resolution on the merits with less burden and expense overall than were each litigated through pretrial individually.”[4] In an MDL,

[c]lose judicial oversight and a clear, specific, and reasonable management program, developed with the participation of counsel, will reduce the potential for sanctionable conduct because the parties will know what the judge expects of them. . . . Although sanctions should not generally be a management tool, a willingness to resort to sanctions, sua sponte if necessary, may ensure compliance with the management program.[5]

         Because multidistrict litigation is a “special breed of complex litigation where the whole is bigger than the sum of its parts, ” the district court “needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line.”[6]

         Plaintiff Gahan has not identified any manifest error of law or fact or any newly discovered evidence. Gahan first asserts that the Court's order is based on a mistake of fact because the Court found that Gahan did not produce all of the photographs she sent to Dr. David Weinstein. At the same time, however, Gahan admits that her production was less than complete-she states that her production included “every photograph in Dr. Weinstein's production set except one.”[7]

         Even if Gahan had produced every photograph she sent to Dr. Weinstein, the Court's sanctions order would remain sound. As the Court wrote in its Order and Reasons imposing sanctions, Rule 37(b)(2)(A) authorizes a district court to impose just sanctions on a party who refuses to obey a valid discovery order.[8] The rule provides that a district court may impose severe sanctions such as dismissing the entire action or treating the failure to obey as contempt of court.[9] Rule 37(b)(2)(C) provides that “[i]nstead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure . . . .”[10]

         In its Order and Reasons, the Court made the specific factual finding that Gahan repeatedly omitted information from her Plaintiff Fact Sheet.[11] In doing so, she violated multiple court orders, including Pretrial Order No. 18, which facilitates discovery in this case.[12] Not only that, the Pretrial Orders in this case are part of the “clear, specific, and reasonable management program” for this MDL, and the program has been “developed with the participation of counsel.”[13] This makes Gahan's conduct even more inexcusable. Plaintiff Gahan knows what is expected of her in this MDL, and yet she willfully failed to comply-and is continuing to do so.

         In Phenylpropanolamine (PPA) Products Liability Litigation, the Ninth Circuit upheld a district court's decision to dismiss cases in which plaintiffs delayed in completing their Plaintiff Facts Sheets.[14] The court wrote:

The district court found that the unreasonable delay in completing Fact Sheets prejudiced the defendants' ability to proceed with the cases effectively. It explained that the purpose of the Plaintiff's Fact Sheet was to give each defendant the specific information necessary to defend the case against it, and that without this device, a defendant was unable to mount its defense because it had no information about the plaintiff or the plaintiff's injuries outside the allegations of the complaint. We defer to this assessment. The court also found that [the plaintiffs'] inability or unwillingness to furnish the information requested in a timely fashion was not excusable. Deference is due to this finding as well. Failure to produce information without a good reason increases the risk of prejudice from unavailability of witnesses and loss of records.[15]

         The plaintiffs argued that their noncompliance was not the result of willfulness or bad faith, but the Ninth Circuit concluded that, because their conduct was not outside of their control, dismissal was an available sanction under Rule 37.[16] The court further noted that “[s]ound management of the court's docket also counsels in favor of sanctions as a deterrent to others, particularly in the context of ...


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