Case Name: Klara Ernyes-Kofler, et al. v. Sanofi S.A., et al.
Case No.: 16-CV-303585

This is an action by breast cancer survivors who were prescribed and injected with Taxotere®, a chemotherapy drug, against the drug’s manufacturer and its subsidiaries, along with an unaffiliated distributor. Before the Court is a motion by defendant sanofi-aventis U.S. LLC to sever plaintiffs’ claims and to dismiss or stay the claims of the out-of-state plaintiffs based on forum non conveniens. Plaintiffs oppose the motion.

I. Allegations of the Operative Complaint

Plaintiffs are breast cancer survivors who were prescribed and injected with Taxotere, a brand of the drug docetaxel. (Complaint, ¶ 1.) They allege that, although lower potency alternatives had been available for years, defendants misleadingly promoted Taxotere as having superior efficacy. (Ibid.) In fact, Taxotere’s increased potency only makes it more toxic than alternatives and causes more severe side effects, including a significantly increased risk of disfiguring, permanent hair loss. (Ibid.) Plaintiffs allege that neither they nor their treating healthcare providers were aware of or informed by defendants that such hair loss can occur following treatment with Taxotere, and all suffered from the condition following their treatment. (Id. at ¶¶ 74, 77-81.)

Two of the plaintiffs, Klara Ernyes-Kofler and Nadine Spertus, reside in and received treatment with Taxotere in California. (Complaint, ¶¶ 6-7.) The other four plaintiffs—Ann Buchanan, Vera Sue Green, Sharon M. Stewart, and Sylvia Washington—reside in and received treatment with Taxotere in other states, namely, Tennessee, Louisiana, and Kentucky. (Id. at ¶¶ 8-11.)

Defendant Sanofi S.A. is a French multinational pharmaceutical parent company that operates around the world through more than 400 wholly-owned subsidiaries, including Aventis Pharma S.A., a French company with its principal place of business in France, and sanofi-aventis U.S. LLC, a Delaware company with its principal place of business in New Jersey. (Complaint, ¶¶ 12-16.) Sanofi S.A. manufactured, distributed, marketed, and sold Taxotere through these and other subsidiaries. (Id. at ¶ 17.) The Sanofi defendants have sponsored or conducted clinical trials of Taxotere in California, including at Stanford University. (Id. at ¶ 30.) Sanofi maintains an office in San Francisco and employs sales representatives and business managers throughout the state, with its vaccine division (Sanofi-Pasteur, Inc.) registered to do business in California. (Id. at ¶ 31.) Sanofi spends large amounts of money lobbying elected officials in California through other entities. (Id. at ¶¶ 33-35.)

Defendant McKesson Corporation is a Delaware corporation with its principal place of business in San Francisco. (Complaint, ¶ 36.) It marketed and distributed Taxotere, including the Taxotere used by plaintiffs. (Ibid.) It also owns US Oncology, which supported a significant amount of Taxotere research and promotion. (Ibid.)

Plaintiffs filed this action in this Court on December 5, 2016. They assert claims for (1) product liability for negligence, (2) strict products liability for failure to warn, (3) fraudulent misrepresentation, (4) fraudulent concealment, (5) strict products liability for misrepresentation, (6) fraud and deceit, and (7) extreme and outrageous conduct/intentional infliction of emotional distress.

II. Procedural History

According to the parties’ most recent case management conference statement, more than 9,500 product liability claims similar to those asserted in this case have been filed across the United States. On October 4, 2016, the Judicial Panel for Multidistrict Litigation established MDL 2740, In re Taxotere (Docetaxel) Products Liability Litigation, which consolidates Taxotere cases for pretrial purposes before the Honorable Jane T. Milazzo of the Eastern District of Louisiana.

sanofi-aventis U.S. LLC (“sanofi”) removed this action to the United States District Court for the Northern District of California in December 2016, alleging that defendant McKesson Corporation was fraudulently joined. The action was subsequently transferred to MDL 2740. The MDL court “ordered omnibus motion to remand briefing on various California state court cases that had been removed.” On May 15, 2018, the MDL court remanded the present action to this Court, finding “a factual dispute as to McKesson’s involvement.” Meanwhile, the MDL court had dismissed the French Sanofi entities from the MDL, so they are no longer parties to this case.

III. Motion to Sever Plaintiffs’ Claims

sanofi moves to sever plaintiffs’ claims on the ground that they are misjoined under Code of Civil Procedure section 378 and on the alternative ground that the Court should sever the claims in its discretion under Code of Civil Procedure section 379.5.

A. Misjoinder

With regard to the first ground, a defendant may raise misjoinder by demurrer when it appears on the face of the complaint or by answer when it does not. (Code Civ. Proc., §§ 430.10, subd. (d), 430.30.) It is rare for this ground to appear on the face of the complaint. (See Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 202.) Here, sanofi asserted misjoinder as a defense in its answer, submits discovery responses in support of its motion, and does not characterize its motion as a demurrer. Consequently, it appears that sanofi asks the Court to adjudicate the merits of its defense prior to trial, but it provides no statutory basis for this request.

While Code of Civil Procedure section 437c, Code of Civil Procedure section 597, or other authority might authorize the Court to address misjoinder prior to trial under appropriate circumstances, here, the record does not support a finding of misjoinder in any event. The only evidence sanofi introduces is plaintiffs’ discovery responses acknowledging that they were treated by different healthcare providers in different states. This evidence does not contradict plaintiffs’ allegations that they all suffered permanent hair loss following treatment with Taxotere, and neither they nor their providers were aware of or informed by defendants that this was a known risk of the drug. (Complaint, ¶¶ 74, 77-81.)

Code of Civil Procedure section 378, subdivision (a)(1) provides that plaintiffs may join in one action if “[t]hey assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” The “requirement that the right to relief arise from the ‘same transaction or series of transactions’ has been construed broadly so that joinder of plaintiffs is permitted if there is any factual relationship between the claims alleged.” (State Farm Fire & Casualty Co. v. Superior Court (Allegro) (1996) 45 Cal.App.4th 1093, 1113, abrogated on another ground by Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163.) The plaintiffs must also demonstrate that there is a common question of law or fact. “The purpose of section 378 is to permit the joinder in one action of several causes arising out of identical or related transactions and involving common issues. The statute should be liberally construed so as to permit joinder whenever possible in furtherance of this purpose,” in tort as well as contract actions. (Coleman v. Twin Coast Newspaper, Inc. (1959) 175 Cal.App.2d 650, 653.)

Here, defendants’ alleged nondisclosure of a known risk of Taxotere is a common occurrence giving rise to plaintiffs’ claims, which will raise common issues of fact. Plaintiffs allege that they received Taxotere for the same condition—breast cancer—and suffered the same injury—permanent hair loss—as a result of the same nondisclosure by defendants. While sanofi invites the Court to speculate that differences in plaintiffs’ medical histories and in the regimen of Taxotere they received will predominate over the common issues in their cases, it provides no evidence or reasoning to support this argument. These circumstances distinguish this case from David v. Medtronic, Inc. (2015) 237 Cal.App.4th 734, where the court found that “the only common factor is that plaintiffs each had Infuse, or the Infuse protein, implanted in them,” and noted that “Plaintiffs do not allege, for example, that they each had the same class of spinal surgery, based at least in part on the same representation, and that the Infuse failed in each of them in the same way. On the contrary, they had different surgeries, performed by different surgeons, with different knowledge and exposure to different representations by Medtronic.” (At p. 741.)

Considering the minimal evidence supporting its motion, sanofi essentially asks the Court to find misjoinder based on the pleadings alone, a rare outcome. The Court will deny its motion on this ground without prejudice to its ability to renew its misjoinder defense in the future based on a more developed record.

B. Code of Civil Procedure Section 379.5

Another basis for sanofi’s motion to sever is Code of Civil Procedure section 379.5, which provides:

When parties have been joined under Section 378 or 379, the court may make such orders as may appear just to prevent any party from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.

This statue enables the court to address “practical concerns” that “do not furnish grounds for finding a misjoinder of plaintiffs.” (Anaya v. Superior Court (Dow Chemical Co.) (1984) 160 Cal.App.3d 228, 233-234 [joinder was appropriate where employees alleged they were exposed to harmful chemicals at one location over a period of many years through different methods].) In David, the trial court granted severance on the independent ground that it was authorized in the interests of justice under Code of Civil Procedure section 379.5. (David v. Medtronic, Inc., supra, 237 Cal.App.4th at p. 740.)

Here, for the same reasons discussed in connection with sanofi’s forum non conveniens motion, it is possible that severance of the out-of-state plaintiffs’ actions may be warranted in the interests of justice. However, as explained below, additional evidence is required to enable this determination. As to the California plaintiffs, the Court will deny sanofi’s motion without prejudice given the spare record discussed above.

IV. Motion to Dismiss or Stay Out-of-State Plaintiffs’ Claims Based on Forum Non Conveniens

sanofi moves to dismiss or stay the out-of-state plaintiffs’ claims based on forum non conveniens. “Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) The doctrine is codified by Code of Civil Procedure section 410.30, subdivision (a), which provides that “[w]hen a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

“In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) The defendant bears the burden of proof to show that the doctrine applies. (Ibid.) While a strong presumption favors a California plaintiff’s choice of forum in this state, a non-resident is entitled only to “due deference,” which “is to be weighed and balanced by the trial court along with all the other pertinent factors … and has no direct bearing on the moving defendant’s burden of proof.” (National Football League v. Fireman’s Fund Ins. Co. (2013) 216 Cal.App.4th 902, 929.)

A. Suitable Alternative Forum

Here, sanofi has stipulated that it will submit to the jurisdiction of the courts of the out-of-state plaintiffs’ home states and to the tolling of the statutes of limitations in those cases during the pendency of these actions in California. So long as this stipulation is modified to provide for the tolling of plaintiffs’ claims while this action was pending in California and the federal courts, it is adequate to show that the out-of-state plaintiffs’ home states are suitable forums as to sanofi. (See Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 752 [finding Sweden and Norway were suitable alternative forums in a medical device action based on defendants’ stipulation].)

In a multiple-defendant case such as this one, “[e]ven if the major, or ‘primary,’ defendants can be sued in the proposed alternative forum,” the moving party must generally “show that all other defendants, whether or not as central to the litigation, are subject to its jurisdiction as well.” (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 438.) However, David held that the presence of a merely “nominal” defendant “cannot defeat a forum non conveniens dismissal which should otherwise be granted”; in that event, the court should grant the motion and sever the action against the nominal defendant and allow it to proceed in California. (David v. Medtronic, Inc., supra, 237 Cal.App.4th at p. 737.)

In David, the plaintiffs conceded that the secondary defendant—a doctor not involved in the creation, design, promotion, or marketing of the product at issue—was a “nominal” defendant. (David v. Medtronic, Inc., supra, 237 Cal.App.4th at p. 742.) Here, the issue is disputed. Plaintiffs allege that McKesson marketed and distributed Taxotere, including the Taxotere used by plaintiffs. (Complaint, ¶ 36.) Their interrogatory responses are consistent with this allegation. sanofi urges that, in fact, McKesson distributed the drug administered to “at most” one plaintiff, who resides in California. (Reply at pp. 6-7.) In support of this assertion, it cites the MDL court’s opinion remanding the action to this Court, which describes evidence consistent with sanofi’s position, but concludes only that there is a “factual dispute as to McKesson’s involvement with regard to at least one Plaintiff.” For reasons that are not clear to the Court, sanofi does not provide the evidence reviewed by the MDL court for this Court’s own review; however, the Court cannot simply accept the MDL court’s description of underlying evidence as true for purposes of the instant motion. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1568 [court cannot take judicial notice of the truth of hearsay statements or facts set forth even in otherwise judicially noticeable documents].)

sanofi accordingly fails to show that McKesson is a nominal defendant because it did not distribute or directly market Taxotere to the out-of-state plaintiffs or their doctors. However, considering the MDL’s court’s description of existing evidence, as well as the out-of-state plaintiffs’ failure to specifically allege that McKesson distributed the Taxotere that was administered to them or promoted the drug to them or their doctors, it appears possible that the necessary showing can be made. As discussed below, the public and private interest factors might favor granting sanofi’s motion as to the out-of-state plaintiffs if McKesson were shown to be a nominal defendant. Consequently, the Court believes that a brief continuance to allow the parties to submit additional evidence on the issue of McKesson’s connection to the out-of-state plaintiffs is appropriate. The parties shall meet and confer, prior to the initial hearing on this matter if possible, as to whether any further discovery on this subject is necessary and regarding a schedule for supplemental briefing and a further hearing.

B. Public and Private Interest Factors

If a suitable alternative forum is available, “the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” (Ibid.)

Here, documents and witnesses associated with the out-of-state plaintiffs’ treatment and conditions are located in their home states, as demonstrated by their interrogatory responses. Key witnesses including plaintiffs’ healthcare providers are not subject to California process and their testimony would likely have to be presented by deposition. (See Outboard Marine Corp. v. Superior Court (Boyd) (1976) 59 Cal.App.3d 434, 442 [among factors that supported granting forum non conveniens motion, out-of-state witnesses are not subject to California process and “[t]he inconvenience to the defendant, the court, and the jurors hearing the case is greatly enhanced by the probability of the presentation of a substantial amount of testimony by deposition”].) sanofi corporate documents and witnesses are also located outside of California. While plaintiffs allege that an unidentified Sanofi entity has an office in San Francisco and certain clinical trials of Taxotere were conducted at Stanford, there is no clear indication that any documents or witnesses relevant to the out-of-state plaintiffs’ cases against sanofi are located in California. Addressing similar circumstances, the California Supreme Court held in Stangvik that forum non conveniens applied in a medical device action in which the plaintiffs resided and were treated in Scandinavia, even where the defendant was a California corporation and the heart valve implants at issue were designed, manufactured, tested, and packaged in California. (See Stangvik v. Shiley Inc., supra, 54 Cal.3d at pp. 756-757.) On the other hand, cost and expeditiousness may favor trying these claims together in the unique circumstances present here, where the case will be managed in light of the MDL and litigation over the removal of the action has already consumed time and resources.

Turning to the public interest factors, the Court considers “avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751.) Here, these factors may favor dismissal of the out-of-state plaintiffs. California has little to no interest in hearing their claims where sanofi’s practices will already be evaluated under California law as to California plaintiffs. (See id. at p. 759 [California residents’ claims against the defendant “would provide sufficient deterrence to prevent wrongful conduct in the future even if the suits filed by nonresident plaintiffs were tried elsewhere”]; see also Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 760 [California has “little or no interest in litigation involving injuries incurred outside of California by non-residents”].)

Thus, while the Court gives due deference to the out-of-state plaintiffs’ choice of forum, their preference may be outweighed by the public and private interest factors bearing on this case.

V. Conclusion and Order

sanofi’s motion is DENIED WITHOUT PREJUDICE as to the California plaintiffs.

The parties are ordered to appear in person at the hearing on this matter to discuss a schedule for supplemental briefing on McKesson’s connection to the out-of-state plaintiffs and for completing any necessary discovery on this subject. If possible, the parties shall begin their meet and confer efforts on these subjects prior to the hearing.

The Court will prepare the order.