Multidistrict litigation is “littered with examples of undisclosed non-party involvement gone wrong,” according to Sanofi-Aventis U.S. LLC in a motion renewing its demand that plaintiffs attorneys disclose outside funding of lawsuits filed over breast cancer drug Taxotere.
Among the ills Sanofi lawyers depicted: fee arrangements with doctors, medical screenings of plaintiffs, and outside funders that allowed doctors to charge inflated costs on medical liens.
“The same issues presented in these landmark, and some ongoing, MDLs are potentially implicated here,” wrote Douglas Moore of New Orleans-based Irwin Fritchie Urquhart & Moore and Harley Ratliff, a partner at Shook, Hardy & Bacon in Kansas City, Missouri, in a motion filed last month.
It’s the second time Sanofi-Aventis has attempted to get information about who is financially backing more than 1,000 lawsuits alleging Taxotere has caused permanent hair loss, or alopecia areata, in women.
Last time, they dropped their request after plaintiffs lawyers threatened to seek sanctions.
This time, they fine-tuned their approach, stressing the request wasn’t an attempt to tarnish the plaintiffs bar.
“Notwithstanding certain potential similarities to past litigation, defendant does not now allege widespread or illicit influence on these proceedings by interested non-parties — nor is it the purpose of this motion,” they wrote. “Much less it is defendant’s aim to argue that third-party litigation funding — or the existence or involvement of other non-party interested entities or persons — is inherently unethical, illegal, or otherwise improper.”
But that’s exactly what the motion is about, plaintiffs attorneys said in a response last week.
“Sanofi rests its request on a story of corrupt doctors and lawyers from litigations past,” wrote Christopher Coffin, a partner at Pendley Baudin & Coffin in New Orleans, and Karen Barth Menzies, a Los Angeles partner at Girard Gibbs, in a July 25 response. “But in truth, Sanofi’s proposal is an untoward, irresponsible attempt to paint all plaintiffs’ counsel as unethical.”
The disclosure request is to be submitted by Aug. 2, after which U.S. District Judge Kurt Engelhardt of the Eastern District of Louisiana could rule.
Both requests were prompted by an inadvertent email sent on Feb. 7 to Jon Strongman, another attorney at Shook Hardy representing Sanofi. In the email, a lead generator promised to provide Taxotere cases with certain medical diagnoses in exchange for a fee.
Sanofi-Aventis noted that the lead generator, Persist Communications, had testimonials on its websites from two law firms with Taxotere cases. But the testimonials aren’t mentioned in Sanofi-Aventis’ renewed disclosure motion — except to say that they were removed and that a lawyer for one of the firms, Baker Sanders in Garden City, New York, and one of its partners, Marc Grossman, told them that none of their 14 Taxotere cases were associated with Persist.
Instead, Sanofi’s attorneys pointed to research finding that from June 2016 to May 2017, 32,000 TV ads relating to Taxotere had been broadcast at a cost of $9 million. They also brought up other companies involved in Taxotere litigation, such as Record Reform, which reviews medical records for law firms; Knightline Legal, which advertises for Taxotere plaintiffs; and LawStreet Capital, which advances loans for plaintiffs.
“Non-law firm money appears to account for fair percentage of the overall advertisement spending,” they wrote.
They also cited a “growing trend” toward disclosure, noting a proposal last month from the U.S. Chamber of Commerce’s Institute for Legal Reform and dozens of other business groups seeking an amendment from the Administrative Office of the U.S. Courts’ Committee on Rules of Practice and Procedure that would require disclosure of litigation funding in contingency fee cases.
But plaintiffs attorneys called the request “nothing more than a fishing expedition” with “no concrete facts related to wrongdoing.” They criticized Sanofi’s advertising statistics as biased, especially given that its author has “analogized advertising by plaintiffs’ firms to robbing banks” and has partnered with an attorney from Irwin Fritchie on a 2015 paper that provides tips for defense counsel on how to use plaintiffs attorney advertising in their arguments.
They clarified that none of the other companies has a continuing involvement or stake in the litigation. Sanofi’s request also would require all the plaintiffs attorneys in the case to divulge bank lines of credit or their own financing of the litigation.
“Although Sanofi attempts to soften the suggestions nascent in this request, Sanofi’s request is an accusation of unethical conduct, baseless though it may be,” they wrote. “In the end, however, Sanofi can point to no litigation financing arrangement, much less one that would violate ethics rules, yield non-client control, or run afoul of any attorney advertising laws. Plaintiffs alone control this litigation.”