A 5th Circ. panel questioned whether a new trial should be granted to the plaintiff in the first bellwether trial against Sanofi over permanent hair loss allegedly linked to its chemotherapy drug Taxotere.
Plaintiff Barbara Earnest told the panel that Sanofi US Services Inc.’s sole expert witness, Dr. John Glaspy, was wrongly allowed to tell the jury it should trust a reanalysis of a pivotal drug trial conducted by a former employee, Dr. Michael Kopreski, who testified for the company. Glaspy never independently verified that reanalysis, which Earnest says jurors were told shows only rare instances of hair loss and was based on information “cherry-picked” by Sanofi’s attorneys.
Because Kopreski wasn’t presented as an expert witness, he could bypass the more stringent standards for testimony, Earnest argued, and Glaspy was free to parrot Kopreski’s conclusions, taking them as fact.
U.S. Circuit Judge Andrew Oldham told counsel for Earnest, Andre M. Mura of Gibbs Law Group LLP, that “it’s not enough to say we would have ruled differently” regarding allowing the testimony, explaining “it’s a really high standard” to find an evidentiary error merits a new trial. Judge Oldham asked what case would support the argument that this alleged evidentiary error requires a new trial.
Mura said several cases cited in briefing to the court support his argument, and in those cases the courts have looked at “the weight the parties gave the testimony.” In this case, he said, the crux of Sanofi’s closing argument was that Kopreski was the only person to “look under the hood” of the pivotal drug trial — called TAX 316 — that Earnest has claimed all along proves Taxotere causes permanent hair loss. Kopreski told jurors his reanalysis of that trial showed permanent hair loss was rare in Taxotere patients.
Earnest was the plaintiff in the first bellwether trial in a multidistrict litigation against Sanofi and other drugmakers over allegations that the breast cancer drug Taxotere and its generic form, docetaxel, makes patients’ hair fall out permanently.
Earnest said her use of Taxotere from June 2011 to November 2011 caused “disfiguring permanent alopecia.” The plaintiffs have claimed Sanofi knew for years about the hair loss, but doctors and patients were never warned of this “devastating” knock-on effect, the plaintiffs said in their master complaint filed in September 2018.