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Herman, Herman & Katz, LLC

On April 21, 2021, the U.S. Fifth Circuit Court of Appeal in New Orleans issued a ruling against victims of dangerous products in Louisiana.  

The case involved three Louisiana breast cancer survivors who filed suit as part of a multidistrict litigation against the distributors of Taxotere (docetaxel), a drug used for the treatment of certain cancers. Taxotere was first approved by the Food and Drug Administration (FDA) in 1996. In 2015, the FDA approved changes to the drug’s label that included “cases of permanent hair loss have been reported.”

The three Louisiana women, along with other similarly situated women all over the country, suffered permanent hair loss as a result of their use of the drug. The breast cancer survivors who used Taxotere before the 2015 label change filed suit, claiming that the distributors of the drug failed to adequately warn them of the risk of permanent chemotherapy-induced hair loss.

The issue before the federal court in New Orleans was whether the three Louisiana cancer survivors timely filed their lawsuit in accordance with state law. The Court ruled that they did not and the lawsuits were dismissed. In deciding the case, the court was called up to analyze the concepts of prescription and contra non valentem under Louisiana law. 

What Is “Prescription” Within The Context of Louisiana Law?

“Prescription,” within the context of Louisiana law, is a term used to generally describe the period of time that a person has to file suit after they are allegedly wronged by the acts or omissions of another.  

The specific time period of when a lawsuit must be filed varies from case to case, depending upon a number of factors that are best analyzed by a licensed attorney. Thus, it is very important that anyone considering a lawsuit consult with a Louisiana attorney immediately to better understand any applicable deadlines.  

In analyzing the issue of prescription in the Taxotere case, the federal appeals court ruled that Louisiana law provided a one-year prescriptive period for the products-liability cases brought by the breast cancer survivors against the pharmaceutical company. The court concluded that this one-year time period began to run from the day the injury or damage was first sustained by the Louisiana women.

Based upon the timing of when the women’s lawsuits were filed, in relation to when they learned that their hair was permanently lost (6 months after their completion of chemotherapy), the court concluded that their suits were prescribed (meaning the one-year deadline had past).  

Nevertheless, the court’s analysis was not complete. It then had to work through the issue of whether the Louisiana legal concept of contra non valentem might salvage the women’s claims against the drug company. 

What Is Contra Non Valentem Within The Context of Louisiana Law?

Within Louisiana law, there is a doctrine known as contra non valentem agree non currit praescriptio. It generally means “no prescription runs against a person unable to bring an action.” Thus, in certain limited circumstances, the time period in which a person has to file a lawsuit will not begin to immediately run from the date of their injury.

One such limited circumstance is when a plaintiff does not know that he/she has a cause of action against a defendant. This circumstance is often called the “discovery rule.” Under this rule, the applicable time period to file suit begins when the plaintiff discovers or reasonably should have discovered that he/she had a cause of action against a potential defendant.       

In arguing that the doctrine of contra non valentem applied to their Taxotere case, the Louisiana breast cancer survivors definitively proved that they first learned of the link between their permanent hair loss and use of the Taxotere in 2016 when they saw a law firm’s commercial about Taxotere litigation. Up until that time, the women had no knowledge of the link between the drug and their hair loss and thus had not yet discovered that they even had a cause of action against the drug company. The women argued that to the extent they filed suit within one year of learning of this link, their suits were timely filed pursuant to the doctrine of contra non valentem.    

The Fifth Circuit Court of Appeal disagreed. Instead of looking to the undisputed date on which these Louisiana breast cancer survivors actually learned of the link between their permanent hair loss and Taxotere, the court focused on when these women should have learned of that link.  

In ruling against the women and dismissing their case, the court concluded that these breast cancer survivors were not sufficiently diligent in trying to get to the bottom of why their hair was not growing back after chemotherapy. The court concluded that these women, after recovering from life-threatening cancer, should have been more industrious in pressing their doctors for answers and doing internet research on their own. The court reasoned that if these women had only asked the right doctors the right questions and/or entered the right search terms in Google, they would have uncovered the link between their hair loss and Taxotere.       

Ultimately, the court ruled that the Louisiana women “…did not act reasonably in light of their injuries, and their causes of action were ‘reasonably knowable in excess of one year prior to their filing’ suit.” The harsh result was that the breast cancer survivors were prevented from holding the pharmaceutical company accountable for their injures.  

For over 70 years, the Louisiana law firm of Herman, Herman & Katz has represented the victims of dangerous products. If you or someone you know has been injured as a result of a dangerous product, our experienced Louisiana lawyers can help you navigate the complexities of your potential case. For more information or a free case consultation, contact us online or call us toll-free at 844-943-7626.      

One Comment

  1. Gravatar for Charlotte Kearney
    Charlotte Kearney

    I use that drug in 2014 for my stage 2 cancer and Mary Bird Perkins, I did not lose all my hair but I had lost my eyelashes and eyebrows some of them grew back but not thick like they were Plus I have never felt the same. My cancer came back three years later stage 4 Breast and bone

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