Just the facts, as Shook is involved in the litigation. But worth a read is In re Taxotere (Docetaxel) Prod. Liab. Litig., 994 F.3d 704 (5th Cir. 2021).
There the Fifth Circuit upheld the lower court’s decision granting defendant summary judgment in suit alleging the pharmaceutical company failed to warn that its lifesaving chemotherapy drug Taxotere carried a risk of permanent hair loss, as patient did not demonstrate that the alleged failure caused her injury.
Pursuant to the Louisiana Products Liability Act, a plaintiff asserting a failure-to-warn claim must prove: (1) a manufacturer’s failure to adequately warn the prescribing physician of a risk associated with the product that the physician did not otherwise know about, and (2) that the failure to warn was the cause in fact and the proximate, or legal, cause of the plaintiff’s injury. Kampmann v. Mason, 921 So. 2d 1093, 1094, 1096 (La. App. 5 Cir. 2006) (citing La. Stat. Ann. § 9:2800.57 (West 2013)). To prove causation in this context, a “plaintiff must show that a proper warning would have changed the decision of the [prescribing] physician, i.e. that but for the inadequate warning, the [prescribing] physician would not have used or prescribed the product.” Willett v. Baxter Int’l, Inc., 929 F.2d 1094, 1099 (5th Cir. 1991); accord Sharkey v. Sterling Drug, Inc., 600 So. 2d 701, 711 (La. App. 1 Cir. 1992), writs denied, 605 So.2d 1099 and 605 So.2d 1100 (La.).
Plaintiff alleged she might have done something different. The causation analysis in a failure-to-warn claim asserted against a drug’s manufacturer thus is focused on the prescribing physician’s decision to prescribe the drug. Willett, 929 F.2d at 1099; accord Sharkey, 600 So. 2d at 711. So, to the extent that patient choice is relevant, that relevance is cabined to helping the court to decide whether plaintiff’s evidence—including that of other available treatments and the importance she places on her appearance—is sufficient to introduce a genuine dispute of material fact as to whether Dr. Sonnier’s prescribing decision would have been different had he known that Taxotere’s associated risk of alopecia was potentially permanent rather than temporary. 994 F.3d 704, 709.
The prescriber testified that a Taxotere label warning of potentially permanent hair loss—as opposed to temporary hair loss—would not have changed his decision to use the Taxotere-based chemotherapy to treat plaintiff’s breast cancer. There was a potential alternative, specifically Anthracycline-based therapies. But these alternatives to the Taxotere-based TCH carried a risk of cardio-toxicity and are not recommended for use in those over the age of sixty-five. In light of the fact that Phillips was seventy-five and had pre-existing heart conditions, Dr. Sonnier did not prescribe these alternatives. Affirmed.