Maxwell v. Sanofi US Services Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REPONZA MAXWELL, )

)

Plaintiffs, )

)

v. ) 2:23-cv-696-ACA

)

SANOFI-AVENTIS U.S. LLC, et al., )

)

Defendants. )

MEMORANDUM OPINION

Defendants Sanofi-Aventis U.S., LLC and Sanofi US Services, Inc.

manufactured, marketed, and sold Taxotere, a chemotherapy medication. In May

2010, Plaintiff Reponza Maxwell used Taxotere. By December 2010, Ms. Maxwell

had experienced permanent hair loss and thinning. Almost seven years later,

Ms. Maxwell filed her complaint against Defendants, alleging that her permanent

hair loss was a side effect of Taxotere.

Defendants move for judgment on the pleadings, contending that

Ms. Maxwell’s claims are time barred. (Doc. 29). At Defendants’ request, the court

held a hearing on the motion. Because Ms. Maxwell’s claims are time barred, the

court WILL GRANT Defendants’ motion and WILL DISMISS this action WITH

PREJUDICE.

I. BACKGROUND

When deciding a motion for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c), courts must accept all factual allegations in the complaint as

true and draw all reasonable inferences in favor of the plaintiff. Garcia-Bengochea

v. Carnival Corp., 57 F.4th 916, 928 (11th Cir. 2023).

The court received this case on remand from the judicial panel that is presiding

over In re: Taxotre (Docetaxel) Products Liability Litigation, No. 2:16-md-2740

(J.P.M.L.) (the “multidistrict litigation”). (See doc. 7). Ms. Maxwell’s short form

complaint provides almost no factual allegations. (See doc. 1). Instead, it

incorporated in full the amended master complaint from the multidistrict litigation.

(See id.). After Ms. Maxwell filed her short form complaint, the Plaintiffs Steering

Committee in the multidistrict litigation amended the master complaint. (Doc. 7 at

19–20; see also doc. 5-26). As a result, there is some confusion about which master

complaint contains the relevant allegations. (Compare doc. 30 at 3 n.2 (citing the

second amended master complaint), with doc. 35 at 5 (citing the first amended master

complaint)).

“[A]n amended pleading supersedes the former pleading.” Jacob v. Mentor

Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022). “The original pleading is

abandoned by the amendment[] and is no longer a part of the pleader’s averments

against his adversary.” Id. (cleaned up). Accordingly, the second amended master

complaint is the operative multidistrict pleading in this case (see doc. 7 at 20), and

the court will consider only the allegations in that complaint to rule on Defendants’

motion. These are the facts alleged in Ms. Maxwell’s complaint and the operative

complaint in the multidistrict litigation:

Ms. Maxwell was diagnosed with breast cancer and underwent chemotherapy

using Taxotere. (Doc. 5-26 ¶ 5; see also doc. 1 at 3). Defendants are pharmaceutical

companies who researched, developed, tested, manufactured, labeled, advertised,

marketed, promoted, sold and/or distributed Taxotere. (Doc. 5-26 ¶¶ 15–16, 18–19,

30–31).

Ms. Maxwell used Taxotere from May 2010 to July 2010. (Doc. 1 at 4). In

December 2010, Ms. Maxwell experienced permanent hair loss and thinning, which

she contends was a side effect of Taxotere. (Id.; see also doc. 5-26 ¶ 5). The

permanent hair loss made Ms. Maxwell feel stigmatized, altered her self-image,

affected her relationships with others, and otherwise prevented her from “return[ing]

to normalcy” after receiving treatment. (Doc. 5-26 ¶ 6).

Ms. Maxwell contends that her experience is not unique. (See, e.g., id. ¶¶ 5–

11). It is “a now well-documented side effect” of Taxotere “that the[] drug[] cause[s]

permanent hair loss.” (Id. ¶ 4). Ms. Maxwell contends that Defendants failed to warn

patients and healthcare providers that Taxotere could cause permanent hair loss.

(Id.). Ms. Maxwell alleges that Defendants instead concealed this side effect from

the public. (Doc. 5-26 ¶ 4).

II. DISCUSSION

Out of the claims made in the operative master complaint, Ms. Maxwell

asserts the following against Defendants: (1) strict products liability – failure to

warn; (2) negligence; (3) negligent misrepresentation; (4) fraudulent

misrepresentation; (5) fraudulent concealment; and (6) fraud and deceit. (Doc. 1 at

4; see also doc. 5-26 ¶¶ 221–31, 240–311). For ease of the court and convenience of

the parties, the court refers to the strict products liability and negligence claims as

the “product claims.” The court refers to all other claims as the “fraud claims.”

Defendants assert that Ms. Maxwell’s claims are improperly pleaded and time

barred. (See doc. 29; doc. 30). The court agrees and examines each argument in turn.

a. Ms. Maxwell has not pleaded her fraud claims with the requisite

particularity.

Defendants assert that Ms. Maxwell has not pleaded her fraud claims with the

particularity required by Federal Rule of Civil Procedure 9(b). (See doc. 30 at 16).

Ms. Maxwell does not fully respond to this argument, arguing instead that there is

ample record evidence adduced during the multidistrict litigation proceedings to

support her fraud claims. (See doc. 35 at 3–4). But this is a motion for judgment on

the pleadings, and the court does not consider evidence. See Fed. R. Civ. P. 12(d).

“In alleging fraud . . . , a party must state with particularity the circumstances

constituting fraud . . . .” Fed. R. Civ. P. 9(b). Specifically, a plaintiff must allege “(1)

precisely what statements were made . . . , (2) the time and place of each such

statement and the person responsible for making” the statement, “(3) the content of

such statements and the manner in which they misled the plaintiff, and (4) what the

defendants obtained as a consequence of the fraud.” Young v. Grand Canyon Univ.,

Inc., 57 F.4th 861, 875 (11th Cir. 2023) (quotation marks omitted). Rule 9(b) also

applies to claims of fraudulent concealment. See Henderson v. Wash. Nat. Ins. Co.,

454 F.3d 1278, 1284 (11th Cir. 2006).

When the judicial panel presiding over the multidistrict litigation remanded

this case, the panel advised this court that the panel had directed all plaintiffs to

amend their short-form complaints to include plaintiff-specific allegations for the

fraud claims. (Doc. 7 at 20). The deadline to plead those allegations has expired (id.

at 21), and Ms. Maxwell did not amend her short form complaint. Accordingly, the

only allegations particular to Ms. Maxwell are: (1) she used Taxotere from May 2010

to June 2010; (2) the Taxotere was administered to her in Alabama; and (3) her hair

loss and thinning became permeant in December 2010. (Doc. 1 at 4).

Because Ms. Maxwell did not amend her short form complaint to include

allegations that are specific to her, there are no allegations regarding how

Defendants’ statements misled her. (Compare doc. 1, with doc. 7 at 20); see also

Young, 57 F.4th at 875; Henderson, 454 F.3d at 1284. Although the master operative

complaint contains general allegations regarding Defendants’ conduct (see doc. 5-

26 ¶¶ 268–76), Ms. Maxwell cannot satisfy Rule 9(b)’s requirements with general

allegations, see Fed. R. Civ. P. 9(b). Accordingly, Ms. Maxwell has not pleaded her

fraud claims in accordance with Rule 9(b), and the court WILL DISMISS

Ms. Maxwell’s fraud claims on that ground.

b. Ms. Maxwell’s products claims are time barred.

Defendants assert that Ms. Maxwell’s products claims are time barred because

her injury accrued in 2010 and she did not file her complaint until 2017. (Doc. 30 at

11–12). Ms. Maxwell presents two arguments in response. (See doc. 35 at 1–3; see

also id. at 4–8). The court examines each in turn.

i. Because Ms. Maxwell did not properly allege a fraudulent

concealment claim, she cannot invoke Alabama Code § 6-2-3.

Ms. Maxwell invokes Alabama Code § 6-2-3, which she asserts tolls the

applicable statute of limitations for her products claims. (Doc. 35 at 4). Defendants

reply that Alabama Code § 6-2-3 is inapplicable because Ms. Maxwell has not

pleaded her fraudulent concealment claim with particularity. (Doc. 38 at 6).

“In actions seeking relief on the ground of fraud . . . , the claim must not be

considered as having accrued until the discovery by the aggrieved party of the fact

constituting the fraud, after which he must have two years within which to prosecute

his action.” Ala. Code § 6-2-3. The Alabama Supreme Court interprets this provision

to also toll the statute of limitations “to other torts not arising in fraud” when pleaded

alongside a claim of fraudulent concealment because “[a] party cannot profit by his

own wrong in concealing a cause of action against himself until barred by [the statute

of] limitation[s].” DGB, LLC v. Hinds, 55 So. 3d 218, 224 (Ala. 2010) (quotation

marks omitted).

But there is a problem: the claim of fraudulent concealment must itself be

properly pleaded to toll the statute of limitations for products claims. Henderson,

454 F.3d at 1282–83; see also Miller v. Mobile Cnty. Bd. of Health, 409 So. 2d 420,

422 (Ala. 1981) (holding that the failure to sufficiently plead a claim of fraudulent

concealment prevents a litigant from invoking Alabama Code § 6-2-3 for the

remaining tort claims). Ms. Maxwell has not properly pleaded a claim of fraudulent

concealment, supra at 4–6, and therefore may not invoke Alabama Code § 6-2-3 for

her products claims.

ii. Ms. Maxwell’s allegations preclude her from asserting that her

hair loss was a latent injury.

Ms. Maxwell contends that the permanency of her hair loss was a latent injury

that could not be discovered during the applicable two-year statute of limitations.

(Doc. 35 at 2). Defendants reply that this position is inconsistent with her allegations

and applies only in cases involving asbestos. (Doc. 38 at 5). The court does not

decide whether a latent injury exception to the statute of limitations for products

cases exists under Alabama law because Ms. Maxwell’s pleaded allegations

preclude her from making this argument.

Under Alabama law, the distinctive characteristic of a latent injury is that it

materializes slowly and prevents the individual from “recogniz[ing] the nature,

seriousness, and compensable character of [an] injury” at the time the injurious

conduct occurs. Dillard v. Calvary Assembly of God, ___ So.3d ___, 2022 WL

4394872, at *4 (Ala. Civ. App. Sept. 23, 2022) (quotation marks omitted). Ms.

Maxwell alleges that her hair loss became permanent in December 2010. (Doc. 1 at

4). She further alleges that her hair loss heightened her everyday awareness of her

cancer treatment. (Doc. 5-26 ¶ 216). Specifically, she alleges that her hair loss

caused others to avoid eye contact with her, that she felt stigmatized, and that the

hair loss altered her self-image. (Id. ¶¶ 6, 218).

These allegations prevent Ms. Maxwell from asserting that she was unaware

of “the nature, seriousness, and compensable character of” her hair loss. See Dillard,

2022 WL 4394872, at *4. Her products claims therefore accrued in December 2010.

Ms. Maxwell’s products claims are subject to a two-year statute of limitations, see

Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1305 (11th Cir. 2000);

Ala. Code § 6-2-38(1), and she filed her complaint in 2017. Accordingly, her

products claims are time barred, and the court WILL DISMISS Ms. Maxwell’s

product claims on that ground.

c. Separately, Ms. Maxwell is not entitled to equitable tolling.

Ms. Maxwell asserts that equitable tolling applies to her claims because

Defendants’ labeling, marketing materials, and package inserts misled her into

believing her hair would eventually grow back. (Doc. 35 at 5). Defendants respond

that that Ms. Maxwell’s allegations identify publicly available information that she

could have discovered through reasonable diligence that would have put her on

notice of her claims. (Doc. 38 at 9–10).

“The party seeking equitable tolling has the burden of proof, although he need

not make any allegations about equitable tolling in his complaint.” Villarreal v. R.J.

Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc) (internal

citation omitted). “A plaintiff nonetheless can plead h[er]self out of court by alleging

facts that foreclose a finding of diligence or extraordinary circumstances, both of

which are required for equitable tolling.” Id. And that is what Ms. Maxwell has done

here.

Ms. Maxwell alleges that medical studies identified a potential link between

Taxotere and permanent hair loss as early as December 2006. (Doc. 5-26 ¶ 150).

Ms. Maxwell further alleges that medical journals also began publishing articles

regarding a potential link between Taxotere and permanent hair loss as early as 2009.

(E.g., id. ¶¶ 152, 158–62). Ms. Maxwell also alleges that news articles began

reporting on this potential link as early as March 2010. (E.g., id. ¶¶ 153–57).

The pleaded examples of publicly available information regarding a potential

link between Taxotere and permanent hair loss suggest that Ms. Maxwell could have

discovered her cause of action through reasonable diligence. See In re Taxotere

(Docetaxel) Prod. Liab. Litig., 995 F.3d 384, 394 (Sth Cir. 2021) (“A reasonable

inquiry would have uncovered at least some information that linked Taxotere to

persistent alopecia.”).! Accordingly, the court WILL GRANT Defendants’ motion

on the separate and independent basis that Ms. Maxwell’s pleaded allegations

foreclose a finding of reasonable diligence.

Ht. CONCLUSION

The court WILL GRANT Defendants’ motion. The court WILL DISMISS

all clams WITH PREJUDICE. The court will enter a separate order consistent

with this Memorandum Opinion.

DONE and ORDERED this October 27, 2023.

lla

UNITED STATES DISTRICT JUDGE

Decisions of the Fifth Circuit are not binding on this court, but such decisions may be

cited as persuasive authority. See Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir.

2010) (“[W]e consider decisions from other circuits as persuasive authority”); see also Generali

v. D ‘Amico, 766 F.2d 485, 489 (11th Cir. 1985). The court finds the reasoning of the Fifth Circuit

persuasive.

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