Sherratt v. Sanofi US Services Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:23-cv-00580-MMD-CSD SYMA SHERRATT, 4 Order Plaintiff [5] v. [6] SANOFI US SERVICES INC. F/K/A 7 SANOFI-AVENTIS U.S. INC. and SANOFIAVENTIS U.S. LLC, [8] Defendants [9] 10 This case is one of thousands of lawsuits placed in Multidistrict Litigation (MDL) in the 11 United States District Court for the Eastern District of Louisiana, and one of over 600 cases 12 remanded by the MDL court to various district courts across the country. 13 The court held a status hearing on January 4, 2024, and provided deadlines for discovery, 14 expert witnesses, dispositive motions, and the filing of the joint pretrial order. The parties 15 disagreed over whether or not Plaintiff (Sherratt) is entitled to conduct punitive damages 16 discovery. Due to the lengthy history of the MDL, the court ordered the parties to file 17 simultaneous briefs addressing the punitive damages issue on or before February 20, 2024. 18 Defendants (Sanofi) filed their brief opposing Sherratt’s request to conduct punitive damages 19 discovery (ECF No. 26); however, Sherratt failed to file a brief setting forth her position on this 20 issue. 21 For the reasons set forth below, Sherratt’s request to conduct punitive damages discovery 22 in this action is denied. 23 /// 1 I. DISCUSSION 2 On October 4, 2016, the Judicial Panel on Multidistrict Litigation (JPML) created In re: 3 Taxotere (docetaxel) Products Liability Litigation, MDL 2740, in the United States District 4 Court for the Eastern District of Louisiana, to coordinate pretrial discovery among thousands of 5 individually filed product liability actions against manufacturers, including Sanofi, of the 6 chemotherapy drug docetaxel (Taxotere). Sherratt filed her case on November 27, 2017. (ECF 7 No. 1.) 8 The MDL court allowed the Plaintiffs’ Steering Committee (PSC) to conduct extensive 9 general merits discovery against Sanofi for the benefit of all MDL plaintiffs on all issues asserted 10 in the Second Amended MDL Master Complaint. This included punitive damages, regardless of 11 whether the applicable law in a given plaintiff’s case would permit the presentation of such 12 evidence at trial. (See Second Am. Master Compl., ECF No. 6-4 at 342, 407 ¶ 320 (asserting a 13 request for punitive damages on behalf of all MDL plaintiffs); Case Management Order No. 5 14 (CMO) at ECF No. 6-3 at 5 (“All general discovery propounded to the Sanofi Defendants by 15 Plaintiffs in this MDL … shall be undertaken by, or under the direction of, the [PSC] on behalf 16 of all Plaintiffs with cases in these MDL proceedings. Any discovery not limited to a specific 17 Plaintiff shall be assigned by the PSC.”). The MDL court ordered Sanofi to “produce (non-case 18 specific) documents and information to the PSC for use of Plaintiffs in these MDL proceedings.” 19 ECF No. 6-3 at 7. 20 According to Sanofi, the general merits discovery against it remained open for 16 months 21 in the MDL and included: “(1) the production of more than 576,100 documents (or 6,320,000 22 pages) from 43 separate custodians, (2) depositions of 28 current and former Sanofi employees 23 (including Sanofi’s 30(b)(6) witnesses), and (3) responses to more than 160 written discovery 1 requests.” (See ECF No. 7 at 80-81.) Sanofi produced evidence from the 1990s through 2018. 2 (See CMO No. 5, ECF No. 6-3 at 6.) Sanofi reports the discovery effort focused on what Sanofi 3 knew or should have known about the alleged injury in this litigation “across different functional 4 areas within the company, including pharmacovigilance, medical, safety, regulatory, labeling, 5 marketing and sales, among others.” 6 Preliminarily, denial of Plaintiff’s request is appropriate under Local Rule 7-2, which 7 provides that the failure to file points and authorities in support of a motion constitutes consent to 8 denial of the motion. 9 Next, general merits discovery against Sanofi (which included punitive damages 10 discovery) closed on December 15, 2018. (ECF No. 7 at 80.) Any remaining discovery was to be 11 “case specific,” which was described as the collection of records and depositions of the plaintiffs 12 and plaintiff’s health care providers, spouse, friends, family, and case-specific expert discovery. 13 (ECF No. 7 at 116-117.) The MDL transfer order did not indicate that it contemplated additional 14 general merits or punitive damages discovery. The MDL court’s rulings on this issue constitute 15 the “law of the case.” See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) 16 (citing Arizona v. California, 460 U.S. 605, 618, n. 8 (1983)). 17 Under this doctrine, “when a court decides upon a rule of law, that decision should 18 continue to govern the same issues in subsequent stages in the same case.” Arizona, 460 U.S. at 19 618. In other words, a court will generally not reconsider an issue “that has already been decided 20 by the same court, or a higher court in the identical case.” U.S. v. Alexander, 106 F.3d 874 , 876 21 (9th Cir. 1997) (citation and quotation marks omitted). Although the court has discretion to 22 reconsider previous rulings, it “should be loathe to do so in the absence of extraordinary 23 circumstances such as where the initial decision was ‘clearly erroneous and would work a 1 manifest injustice.’” Christianson, 486 U.S. at 817 (quoting Arizona, 460 U.S. at 618, n. 8 ). “The 2 policies of judicial economy and finality warrant the application of the law of the case doctrine to 3 MDL cases.” Parks v. Ethicon, Inc., No. 20cv0989-TWR (RBB), 2020 WL 6784543 , at *5 (S.D. 4 Cal. Nov. 18, 2020) (citing Allen v. Am. Capital Ltd., 287 F.Supp.3d 763, 776 (D. Ariz. 2017). 5 “The whole purpose of MDL would be defeated if the trial judge after remand were to revisit the 6 rulings of the MDL judge.” Id. (quoting White v. Novartis Pharm. Corp., No. CIV 2:06-665 7 WBS GGH, 2010 WL 3448589 , at *2 (E.D. Cal. Sept. 1, 2010)). 8 Here, extraordinary circumstances do not exist so as to justify this court’s reconsideration 9 of the MDL’s rulings on general merits discovery. At the status conference, Sherratt’s counsel 10 represented that one judge in the Eastern District of Pennsylvania allowed punitive damages 11 discovery in the MDL. (ECF No. 24 at 13.) The court was also informed this was the only 12 district court to do allow punitive damages discovery to be propounded out of the more than 600 13 remanded cases pending in various district courts. According to Sanofi, no other district court 14 has actually compelled Sanofi to produce such discovery. 15 Moreover, Sherratt did not comply with the court’s order to file a brief supporting its 16 position that punitive damages discovery should be allowed. Therefore, Sherratt has not 17 demonstrated any reason for allowing punitive damages discovery, let alone extraordinary 18 circumstances. 19 In the absence of extraordinary circumstances, the court is persuaded by Sanofi’s 20 argument that no punitive damages discovery should be allowed since general merits discovery 21 in the MDL was extensive and closed more than five years ago. 22 /// 23 /// 1 Il. CONCLUSION 2 Sherratt’s request to conduct punitive damages discovery in this action is DENIED. [3] 4) 1T IS SO ORDERED. 5|| Dated: February 28, 2024 CS ox Craig S. Denney 7 United States Magistrate Judge [10] 1]