The Fifth Circuit gave a breast cancer patient a new trial in her suit against Sanofi U.S. Services Inc. alleging that one of its chemotherapy drugs caused her hair loss, saying Sanofi pulled an “end-run” around expert witness rules by eliciting expert testimony from someone the company presented as a layman.
The three-judge panel wrote that Sanofi essentially “smuggled” inadmissible opinion about the drug, Taxotere, past its disclosure and discovery obligations, then used that inadmissible opinion as the crux of its argument that plaintiff Barbara Earnest’s “whole case fails.”
As the two witnesses — former employee Dr. Michael Kopreski and oncologist expert witness Dr. John Glaspy — formed the basis of Sanofi’s defense, a new trial is warranted in light of the company’s strategy of sneaking around the disclosure rules.
In September 2019, the Louisiana jury sided with Sanofi, and Earnest later asked U.S. District Judge Jane Triche Milazzo for a new trial in October 2019, which was denied in February 2020, and a notice of appeal was filed with the Fifth Circuit in March 2020.
Sanofi’s defense, and Earnest’s appeal, centers around a drug trial that Kopreski had conducted while at Sanofi, called “TAX 316,” which Earnest had claimed showed that Sanofi was aware that Taxotere caused hair loss.
At trial, Kopreski had testified about a “re-analysis” of the data he had done, which he said showed that the drug did not cause hair loss, and Sanofi then asked Glaspy about the same issues, with Glaspy repeating Kopreski’s opinion and even admitting that if Kopreski’s data was wrong “none of my opinions are valid.”
Crucially, however, the panel wrote that Kopreski was admitted as a lay witness, who could testify about what he personally witnessed and not offer testimony based on scientific, technical or other specialized knowledge.
When Kopreski then testified about his re-analysis of the TAX 316 data, he went beyond that and into expert testimony territory, stepping around the court’s gatekeeping function, and Glaspy basing his own opinion on Kopreski’s compounded the issue.
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. Plaintiffs in the MDL have claimed Sanofi knew for years about the hair loss, but doctors and patients were never warned of this “devastating” knock-on effect.