Daniel v. Sanofi S.A.

1

VICTORIA DANIEL, Plaintiff, v. SANOFI S.A., et al., Defendants.

No. 2:23-cv-1464-ACA

United States District Court, N.D. Alabama, Southern Division

April 8, 2024

MEMORANDUM OPINION

ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

Defendants Sanofi-Aventis U.S., LLC and Sanofi U.S. Services, Inc. manufactured, marketed, and sold Taxotere, a chemotherapy medication. In 2009, Plaintiff Victoria Daniel used Taxotere. Ms. Daniel ultimately experienced permanent hair loss and thinning. In 2016, Ms. Daniel filed her complaint against Defendants, alleging that her permanent hair loss was a side effect of Taxotere.

Defendants move for judgment on the pleadings, contending that some of Ms. Daniel's claims are time barred and that she failed to plead the rest with the particularity required by Federal Rule of Civil Procedure 9(b). (Doc. 14). Because the court agrees, the court WILL GRANT Defendants' motion and WILL DISMISS this action WITH PREJUDICE.

I. BACKGROUND

When deciding a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Garcia-Bengochea v Carnival Corp., 57 F.4th 916, 928 (11th Cir. 2023).

The court received this case on remand from the judicial panel that is presiding over In re: Taxotere (Docetaxel) Products Liability Litigation, No. 16-md-2740 (J.P.M.L.) (the “multidistrict litigation”). (See doc. 9). Ms. Daniel's short form complaint provides almost no factual allegations. (See doc. 6). Instead, it incorporates in full the master complaint from the multidistrict litigation. (See id. at 1). After Ms. Daniel filed her short form complaint, the Plaintiffs Steering Committee in the multidistrict litigation filed a second amended master complaint. (See doc. 8-4 at 342-409).

“[A]n amended pleading supersedes the former pleading.” Jacob v. Mentor Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022). “The original pleading is abandoned by the amendment[ ] and is no longer a part of the pleader's averments against his adversary.” Id. (cleaned up). The second amended master complaint is the operative multidistrict pleading in this case (see doc. 8-3 at 516; see also doc. 84 at 342-409), and the court will consider only the allegations in that complaint to rule on Defendants' motion. These are the facts alleged in Ms. Daniel's complaint and the operative complaint in the multidistrict litigation:

Ms. Daniel was diagnosed with breast cancer and underwent chemotherapy using Taxotere. (Doc. 8-4 at 342-43 ¶ 5; see also doc. 6 at 3). Defendants are pharmaceutical companies who researched, developed, tested, manufactured, labeled, advertised, marketed, promoted, sold and/or distributed Taxotere. (Doc. 84 at 346-51 ¶¶ 15-31).

Ms. Daniel used Taxotere from August 25, 2009 to December 15, 2009. (Doc. 6 at 4). Ms. Daniel experienced permanent hair loss and thinning, which she contends was a side effect of Taxotere. (Id.; see also doc. 8-4 at 343-44 ¶ 5). The permanent hair loss made Ms. Daniel feel stigmatized, altered her self-image, affected her relationships with others, and otherwise prevented her from “return[ing] to normalcy” after receiving treatment. (Doc. 8-4 at 344 ¶ 6).

Ms. Daniel contends that her experience is not unique. (See, e.g., id. at 34345 ¶¶ 5-11). It is “a now well-documented side effect” of Taxotere “that the[] drug[] cause[s] permanent hair loss.” (Id. at 343 ¶ 4). Ms. Daniel contends that Defendants failed to warn patients and healthcare providers that Taxotere could cause permanent hair loss. (Id.). Ms. Daniel alleges that Defendants instead concealed this side effect from the public. (Doc. 8-4 at 343 ¶ 4).

During the multidistrict litigation, the parties engaged in several rounds of motion and pleading practice as well as various bellwether trials. (See doc. 8-3 at 515-17; see also id. at 528-30) (summarizing the multidistrict litigation proceedings). After the first bellwether trial, the Plaintiffs Steering Committee moved for leave to amend their allegations, requesting to redefine their injury from becoming permanent six months after chemotherapy to a time that “varies from patient to patient.” (See doc. 8-4 at 1425-26) (quotation marks omitted). The judicial panel denied leave to amend, finding that this change to the definition of the plaintiffs' injuries would “cause serious prejudice to Defendants.” (Id. at 1429).

Thereafter, the judicial panel entered Pretrial Order No. 105, which directed all plaintiffs to “amend their complaints to add factual allegations regarding particularized facts individual and specific to each” plaintiff. (Doc. 8-2 at 167 ¶ 2). The parties then entered two different stipulations regarding Pretrial Order No. 105, only one of which is relevant to this case. (See id. at 169-74). In that stipulation, the plaintiffs “agree[d] not to seek leave to amend [their short form complaints] to add or include any allegations that are inconsistent with [Pretrial Order No.] 105 or [the judicial panel's other] [o]rders addressing motions to amend . . ., including any allegations that ha[d] been previously disallowed by the” judicial panel. (Id. at 169 ¶ 2). In turn, Defendants “agree[d] that it will not argue waiver based on any [p]laintiff's refraining from amending her [short form complaint] to include allegations inconsistent with” Pretrial Order No. 105. (Id. at 169 ¶ 3).

Ms. Daniel did not amend her short form complaint. And at the time the court received this case, the deadline for her to do so had passed. (See doc. 8-3 at 517).

II. DISCUSSION

Ms. Daniel asserts all the remaining claims in the master complaint against Defendants: (1) strict products liability - failure to warn; (2) negligence; (3) negligent misrepresentation; (4) fraudulent misrepresentation; (5) fraudulent concealment; and (6) fraud and deceit. (Doc. 6 at 4; see also doc. 8-4 at 387-89 ¶¶ 221-31, 391-405 ¶¶ 240-311; doc. 8-3 at 515-16 (explaining that the judicial panel dismissed the claims for product liability for misrepresentation and breach of warranty). And she independently asserts a claim under Alabama's Deceptive Trade Practices Act (“ADTPA”), Ala. Code § 8-19-1, et seq. (Doc. 6 at 4-5). For the ease of the court and convenience of the parties, the court refers to Ms. Daniel's strict liability, negligence, and ADTPA claims as the “products claims.” The court refers to all other claims as the “fraud claims.”

Defendants assert that Ms. Daniel's claims are improperly pleaded and time barred. (Doc. 14). In response, Ms. Daniel first contends that Defendants' motion is not ripe for review. (See doc. 21 at 4). The court will first ensure that Defendants' motion is ripe before examining Defendants' arguments.

1. Defendants' motion is ripe for review.

Ms. Daniel contends that Defendants' motion is procedurally improper because the pleadings are not “closed” as required by Federal Rule of Civil Procedure 12(c). (See doc. 21 at 4); Fed.R.Civ.P. 12(c) (“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.”). The court rejects this argument.

A motion for judgment on the pleadings “provides a means of disposing of cases when a judgment on the merits can be achieved by focusing on the content of the competing pleadings.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1336 (11th Cir. 2014) (cleaned up). In pertinent part, “competing pleadings” refer to an answer and a complaint. See id. at 1336-37 (discussing Federal Rule of Civil Procedure 7(a)).

Ms. Daniel contends that the court does not have an answer because Defendants did not file an answer to Ms. Daniel's short form complaint. (Doc. 21 at 2). But the short form complaint provides almost no factual allegations. (See doc. 6). Instead, it incorporates in full the master complaint from the multidistrict litigation. (See id. at 1). And the court does have an answer to the master complaint in the multidistrict litigation. (See doc. 8 at 3-4; doc. 8-4 at 246-409; see also doc. 8-2 at 151 ¶ 3) (“No Defendants other than Sagent and Actavis shall plead in response to the Second Amended Master Long Form Complaint, and each Defendant's answer and defenses to the First Amended Master Long Form Complaint is hereby deemed to be its answer and defenses to the Second Amended Master Long Form Complaint.”). Accordingly, the pleadings are closed.

Ms. Daniel further contends that because her case has been remanded from multidistrict litigation, the appropriate procedure is to grant her leave to amend her complaint. (See doc. 21 at 2, 4). First, the court does not ordinarily consider motions that are buried in parties' briefs. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1280-81 (11th Cir. 2009); see also Fed.R.Civ.P. 7(b)(1). Second, to the extent Ms. Daniel has requested leave to amend, her motion is substantively improper because she has not provided the court any proposed amendments so that the court can evaluate the amendments' futility. See Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (“A motion for leave to amend should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment.”). Accordingly, to the extent Ms. Daniel requests leave to amend her complaint, the court DENIES that request for those two separate and independent reasons.

2. Ms. Daniel has not pleaded her fraud claims with the requisite particularity.

Defendants assert that Ms. Daniel has not pleaded her fraud claims with the particularity required by Federal Rule of Civil Procedure 9(b). (See doc. 14 at 1415). Ms. Daniel does not fully respond to this argument, arguing instead that there is ample record evidence adduced during the...