United States Court of Appeals

for the Fifth Circuit

No. 20-30495

In re: Taxotere (Docetaxel) Products Liability 

Litigation

______________________________

Antoinette Durden,

Plaintiff—Appellant,

versus

Sanofi U.S. Services, Incorporated; Sanofi-Aventis, 

U.S., L.L.C., 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-MD-2740

USDC No. 2:16-CV-16635

United States Court of Appeals

Fifth Circuit

FILED

June 9, 2021

Lyle W. Cayce

Clerk

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Before Jolly, Duncan, and Oldham, Circuit Judges.

Per Curiam:*

This appeal requires us to decide whether a breast-cancer survivor, 

Antoinette Durden, timely filed a lawsuit against Sanofi U.S. Services, Inc. 

and Sanofi Aventis U.S., L.L.C. (together, Sanofi), the makers of a 

chemotherapy drug called Taxotere. Durden says she suffers from 

permanent, chemotherapy-induced alopecia caused by Taxotere, and she 

insists Sanofi failed to warn that its drug could cause permanent—rather than 

only temporary—hair loss. But she was slow to sue. She waited more than 

four years after she began to suffer permanent, chemotherapy-induced 

alopecia. Noting the delay, the district court entered summary judgment 

dismissing Durden’s claims as barred by Louisiana’s one-year prescriptive 

period for delictual actions. Durden appeals. Guided by a recent opinion that 

resolves many of the issues before us, In re Taxotere (Docetaxel) Products 

Liability Litigation (Thibodeaux), 995 F.3d 384 (5th Cir. 2021), we AFFIRM.

I.

Sanofi manufactures Taxotere, a chemotherapy drug administered to 

women who suffer from breast cancer. The Food and Drug Administration 

first approved Taxotere in 1996. Although the drug’s label mentioned “hair 

loss” as a possible side effect, the label did not mention permanent hair loss 

until December 2015. That month, the label was changed to include the 

statement that “cases of permanent hair loss have been reported.”

Some cancer survivors reported permanent hair loss after receiving 

chemotherapy treatment using Taxotere. Thousands of them sued Sanofi 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

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after seeing lawyer ads tying Taxotere to permanent hair loss. They claimed 

Sanofi had failed to warn that permanent hair loss was a side effect of 

Taxotere. 

The Judicial Panel on Multidistrict Litigation transferred many of 

these lawsuits to the Eastern District of Louisiana for coordinated pretrial 

proceedings, creating MDL 2740. To streamline this multidistrict litigation, 

the district court directed the plaintiffs to file a master complaint collectively 

and to file short-form complaints individually. The master complaint 

contains allegations common to all plaintiffs, and the short-form complaint 

contains allegations specific to each plaintiff. According to the master 

complaint, Taxotere causes permanent, chemotherapy-induced alopecia. 

The master complaint defines permanent, chemotherapy-induced alopecia 

as “an absence of or incomplete hair regrowth six months beyond the 

completion of chemotherapy.” 

Antoinette Durden is one of many cancer survivors who claim 

permanent, chemotherapy-induced alopecia caused by Taxotere. Durden 

received chemotherapy treatment using Taxotere from October 2011 to 

February 2012. She knew she would lose her hair during chemotherapy, but 

she did not know the hair loss would be permanent. Before she started 

chemotherapy, her oncologist told her that hair loss was a potential side 

effect. She also signed a consent form; it informed her that her chemotherapy 

regimen would consist of two drugs, Taxotere and Cytoxan, and it identified 

“[h]air loss” as one of the “possible risks and discomforts” of treatment. 

Durden lost much of her hair during chemotherapy. She remained 

bald for two years. Concerned that her hair had not regrown, Durden 

contacted her oncologist and dermatologist. She spoke with her oncologist 

about two months after finishing chemotherapy, in April or May 2012. They 

discussed that, if Durden’s hair had not grown back, “it’s likely not going to 

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come back.” Durden did not ask which of the two chemotherapy drugs 

caused her hair loss, but Durden and her oncologist did discuss that 

chemotherapy was the reason Durden’s hair had not regrown. 

In February or March 2014, about two years after completing 

chemotherapy, Durden noticed “little strings of hair” growing on the sides 

of her head. That hair continued to grow back, though thinner than before. 

Durden still has only “little strings” on the top of her head. She learned that 

Taxotere may cause permanent hair loss in 2016, when she saw a lawyer ad 

on television. 

II.

Durden sued Sanofi on November 29, 2016. Her short-form 

complaint adopted the allegations of the master complaint, including the 

definition of permanent, chemotherapy-induced alopecia. In her short-form 

complaint, Durden described her injury as “[p]ermanent, irreversible and 

disfiguring alopecia beginning after treatment with Taxotere.” Durden also 

completed a plaintiff-specific “fact sheet,” identifying March 2012 as the 

date she began to experience the injury. 

After some discovery, Sanofi moved for summary judgment 

dismissing Durden’s claims as barred by Louisiana’s one-year prescriptive 

period for “delictual actions,” which runs from “the day injury or damage is 

sustained.” La. Civ. Code Ann. art. 3492. Sanofi contended that 

Durden’s claims were prescribed on the face of her complaint and that 

Louisiana’s equitable doctrine of contra non valentem did not suspend the 

prescriptive period and save Durden’s otherwise time-barred claims. 

Durden of course disagreed. She rejoined that the one-year prescriptive 

period did not begin to run until 2016, when she saw an ad linking Taxotere 

to permanent hair loss. At the very least, she insisted, factual disputes about 

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the reasonableness of her actions—and thus the applicability of contra non 

valentem—precluded summary judgment. 

The district court sided with Sanofi, granting summary judgment 

dismissing Durden’s claims as barred by the one-year prescriptive period. Its 

analysis proceeded in two parts. 

First, the district court held that Durden’s claims were prescribed on 

the face of the pleadings. The district court calculated the date of Durden’s 

injury using the master complaint’s definition of permanent, chemotherapyinduced alopecia: incomplete hair regrowth six months post-chemotherapy. 

Using this definition, the district court concluded that Durden’s “injury 

manifested itself” in August 2012, six months after she completed 

chemotherapy. The district court also looked to Durden’s plaintiff-specific 

“fact sheet,” in which Durden said she began to suffer persistent alopecia in 

March 2012. Tacking six months on to that date, Durden’s injury occurred, 

at the latest, in September 2012. Because Durden did not file suit until 

November 2016, the district court concluded that Durden’s claims were 

facially prescribed regardless of whether her injury occurred in August 2012 

or September 2012. 

Second, the district court held that Durden had failed to create a 

genuine dispute on contra non valentem. That doctrine did not save Durden’s 

untimely claims because Durden did not act reasonably to discover the cause 

of her permanent hair loss. Durden had “enough notice to call for an 

inquiry” into the cause of her permanent hair loss because, among other 

reasons, her oncologist told her that, if her hair had not regrown, “it’s likely 

not going to come back.” Durden “suspected something was wrong and yet 

failed to investigate its cause,” the district court added. 

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Given these conclusions, the district court entered judgment 

dismissing Durden’s claims as barred by the one-year prescriptive period. 

Durden timely appeals. 

III.

We review the district court’s summary judgment de novo, applying 

the same legal standards as that court. See Ahders v. SEI Priv. Tr. Co., 982 

F.3d 312, 315 (5th Cir. 2020). Summary judgment shall be granted “if the 

movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A dispute is genuine if “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome 

of the suit.” Id. We view the evidence in the light most favorable to Durden 

and draw all reasonable inferences in her favor. See Ahders, 982 F.3d at 315. 

Under Louisiana law, “delictual actions” are subject to a liberative 

prescription of one year. La. Civ. Code Ann. art. 3492. Cases brought 

under the Louisiana Products Liability Act, like Durden’s here, are 

“delictual actions” subject to Article 3492’s one-year prescriptive period. 

See Marable v. Empire Truck Sales of La., LLC, 2016-0876 (La. App. 4 Cir. 

6/23/17); 221 So. 3d 880, 889. This period “commences to run from the day 

injury or damage is sustained.” La. Civ. Code Ann. art. 3492. The 

burden of proving prescription “is normally on the party pleading 

prescription.” Younger v. Marshall Indus., Inc., 618 So. 2d 866, 869 (La. 

1993). If “on the face of the petition it appears that prescription has run,” 

however, “the burden shifts to the plaintiff to prove” a suspension of 

prescription under Louisiana’s equitable doctrine of contra non valentem. Id. 

Durden contends the district court misapplied this burden-shifting 

rule in the summary-judgment context. We have recognized that some 

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question lingers “as to whether this burden-shifting rule applies at a motion 

for summary judgment.” Thibodeaux, 995 F.3d at 389 (citing Trahan v. BP 

Am. Prod. Co., 2016-267 (La. App. 3 Cir. 12/7/16); 209 So. 3d 166, 170). But 

we “le[ft] the question unanswered” in Thibodeaux “because no party argued 

in the district court or here that, if the claims were facially prescribed, the 

burden remained with the defendant.” Id. 

We too will leave the question unanswered. It is true that, unlike in 

Thibodeaux, the plaintiff here, on appeal, urges us to reverse on the basis that 

the district court misapplied the burden-shifting framework governing 

prescription at the summary-judgment stage. But here, as in Thibodeaux, the 

argument simply was not preserved: In the district court, Durden made no 

argument that on summary judgment the burden remains with the defendant, 

even when the plaintiff’s petition is prescribed on its face. In fact, Durden 

endorsed Sanofi’s view of how the burden-shifting framework operates at 

summary judgment. So we decline to consider the burden-shifting argument 

raised for the first time on appeal. See Estate of Duncan v. Comm’r, 890 F.3d 

192, 202 (5th Cir. 2018) (“This court will not consider arguments first raised 

on appeal[.]”). 

Having laid out the applicable law of prescription, we turn to consider 

Durden’s arguments that the district court erred in holding that the one-year 

prescriptive period barred her claims. 

IV.

In addressing whether Durden timely filed her lawsuit against Sanofi, 

we proceed in two steps. First, we ask whether Durden’s claims are facially 

prescribed. We conclude they are. Second, we ask whether contra non 

valentem suspends prescription and saves Durden’s otherwise untimely 

claims. We conclude it does not.

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A.

The one-year prescriptive period began to run when Durden 

“sustained” “injury or damage.” La. Civ. Code Ann. art. 3492. 

Thibodeaux controls our analysis of what constitutes the “injury or damage” 

and when that “injury or damage” was “sustained.” See 995 F.3d at 390. 

We there defined the “injury or damage” in accord with the master 

complaint’s definition of permanent, chemotherapy-induced alopecia: “an 

absence of or incomplete hair regrowth six months beyond the completion of 

chemotherapy.” Id. After so defining the “injury or damage,” we held that, 

“[a]s a matter of law, the injury of ‘an absence of or incomplete hair regrowth 

six months beyond the completion of chemotherapy’ is sustained when, six 

months after the completion of chemotherapy, a person has an absence of or 

incomplete hair regrowth.” Id. 

As relevant here, Durden completed chemotherapy treatment in 

February 2012. By August 2012, six months after the completion of 

chemotherapy, Durden “knew [her] hair loss had persisted for that length of 

time.” Id. Under Thibodeaux, Durden “sustained” the “injury or damage,” 

La. Civ. Code Ann. art. 3492, that started the running of the one-year 

prescriptive period in August 2012, when her hair had not fully regrown. See 

id. Because Durden filed this lawsuit in November 2016, more than four 

years after she was injured, her claims are prescribed on the face of her 

pleadings.

Having concluded that Durden’s claims are facially prescribed, we 

must next decide whether contra non valentem suspends the prescriptive 

period and saves Durden’s otherwise time-barred claims. 

B.

Contra non valentem is a court-created “exception to prescription” 

that “mitigate[s] the occasional harshness” of prescriptive periods. Prevo v. 

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State ex rel. Dep’t of Pub. Safety & Corrs. Div. of Prob. & Parole, 2015-0823 (La. 

11/20/15); 187 So. 3d 395, 398 (per curiam) (citing Carter v. Haygood, 2004-

0646 (La. 1/19/05); 892 So. 2d 1261). The doctrine “is based on the 

equitable notion that no one is required to exercise a right when it is 

impossible for him or her to do so.” Id. (citing Harvey v. Dixie Graphics, Inc., 

593 So. 2d 351, 354 (La. 1992)). But it “only applies in ‘exceptional 

circumstances.’” Renfroe v. State ex rel. Dep’t of Transp. & Dev., 2001-1646 

(La. 2/26/02); 809 So. 2d 947, 953 (quoting La. Civ. Code Ann. art. 

3467 Official Revision Comment (d)). The Supreme Court of Louisiana has 

recognized four such circumstances:

(1) where there was some legal cause which prevented the 

courts or their officers from taking cognizance of or acting on 

the plaintiff’s action; (2) where there was some condition 

coupled with the contract or connected with the proceedings 

which prevented the creditor from suing or acting; (3) where 

the debtor himself has done some act effectually to prevent the 

creditor from availing himself of his cause of action; or (4) where 

the cause of action is neither known nor reasonably knowable by the 

plaintiff even though the plaintiff’s ignorance is not induced by the 

defendant. 

Id. (emphasis added). Durden contends the fourth category of contra non 

valentem saves her otherwise untimely claims. 

The fourth category is often called the “discovery rule.” See Marin v. 

Exxon Mobil Corp., 2009-2368 (La. 10/19/10); 48 So. 3d 234, 245. It will not 

suspend prescription past the point when the plaintiff has constructive 

notice, Cartwright v. Chrysler Corp., 232 So. 2d 285, 287 (La. 1970), which 

has been defined as “whatever notice is enough to excite attention and put 

the injured party on guard and call for inquiry,” Campo v. Correa, 2001-2707 

(La. 6/21/02); 828 So. 2d 502, 510–11. “That means prescription runs ‘from 

the time there is notice enough to call for inquiry about a claim, not from the 

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time when the inquiry reveals facts or evidence sufficient to prove the 

claim.’” Thibodeaux, 995 F.3d at 391 (quoting Terrel v. Perkins, 96-2629 (La. 

App. 1 Cir. 11/7/97); 704 So. 2d 35, 39). 

We established in Thibodeaux how the fourth category of contra non 

valentem applies in precisely the circumstances presented here. Id. at 390–

95. The fourth category of contra non valentem, we explained, would suspend 

the prescriptive period “until the point when a prospective plaintiff through 

the exercise of reasonable diligence should have ‘considered [Taxotere] as a 

potential root cause of’ her injury.” Id. at 392–93 (alteration in original)

(quoting Oil Ins. Ltd. v. Dow Chem. Co., 2007-0418 (La. App. 1 Cir. 11/2/07); 

977 So. 2d 18, 23). To determine when a plaintiff should have considered 

Taxotere as “a potential root cause,” we looked to “key information” 

contained in the master complaint—the same complaint Durden adopted 

here. Id. at 393–94. That information included: 

• In 2006, women who claimed they experienced 

permanent hair loss caused by Taxotere formed an 

online support group called “Taxotears.” 

• In late 2006, Dr. Scot Sedlacek, an oncologist, 

presented a study entitled, “Persistent significant 

alopecia (PSA) from adjuvant docetaxel after 

doxorubicin/cyclophosphamide (AC) chemotherapy in 

women with breast cancer.” According to the study, 

6.3% of patients who received docetaxel experienced 

persistent significant alopecia, while none of the women 

in the groups without docetaxel did. 

• In 2010, a Canadian newspaper published an online 

article entitled, “Women who took chemo drug say they 

weren’t warned of permanent hair loss.” 

• Just two days later, in 2010, CBS News published an 

online article entitled, “Sanofi’s Latest Challenge: 

Women Who Say Its Chemotherapy Left Them 

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Permanently Bald,” which cited other studies that 

noted permanent hair loss after taking Taxotere and 

referenced the “Taxotears” group. 

• Later in 2010, dermatologist Ben Talon and others 

published an article entitled, “Permanent 

chemotherapy-induced alopecia: Case report and 

review of the literature,” which links docetaxel to 

permanent, chemotherapy-induced alopecia. 

• In 2009, 2011, and 2012, articles published in the British 

Journal of Dermatology, the American Journal of 

Dermatopathology, and the Annals of Oncology, 

respectively, linked permanent hair loss among breastcancer patients to docetaxel chemotherapy. 

Based on this “key information,” we found “that Taxotere as a 

possible cause of the persistent hair loss was not an obscure possibility.” Id. 

at 393–94. Rather, “diligence required that Taxotere be explored as a 

possible explanation” for each plaintiff’s persistent hair loss. Id. at 394. 

Because the plaintiffs had “made no inquiry” into Taxotere as a “possible 

explanation” for their persistent hair loss, they had “not act[ed] reasonably 

in light of their injuries,” and contra non valentem’s fourth category did not 

suspend prescription. Id. 

It is obvious that Thibodeaux does not bode well for Durden’s appeal. 

Applying that decision, we must conclude that Durden failed to raise a 

genuine dispute as to the fourth category of contra non valentem. Like the 

plaintiffs in Thibodeaux, Durden never “explored” Taxotere “as a possible 

explanation” for her persistent hair loss. Id. She “needed to investigate 

Taxotere as a potential cause,” id. at 393, but failed altogether to do so. Had 

she conducted a reasonable inquiry, she would “have uncovered at least 

some information that linked Taxotere to persistent alopecia.” Id. at 394. 

She had enough notice “to excite [her] attention” and “call for inquiry,” 

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Campo, 828 So. 2d at 510–11, as early as April or May 2012, when her 

oncologist told her that, since her hair had not regrown, “it’s likely not going 

to come back.”1

 Further, any argument that the facts supporting her cause 

of action were not reasonably knowable is foreclosed by Thibodeaux, where 

we held that the very same causes of action were reasonably knowable by 

October 2015.2 Id. at 393–95. 

For her part, Durden acknowledges Thibodeaux but attempts to 

minimize its application. We note that Thibodeauxwas decided after the close 

of briefing. To that end, Sanofi filed a Federal Rule of Appellate Procedure 

28(j) letter directing our attention to the decision, and Durden filed a 

response. In her response, Durden offers four reasons why, in her view, this 

case differs from that one. None persuades. 

First, Durden contends that this case is different because “four 

doctors said [her hair] would grow back,” but this contention finds no 

support in the record. There is no evidence that any doctor told Durden that 

her hair would fully regrow after the six-month-post-chemotherapy injury 

1 During her deposition, Durden testified that, around January 2014, her 

dermatologist told her that her hair loss was “probably” going to be “permanent.” 

Towards the end of the deposition, however, Durden changed that testimony in response 

to her attorney’s suggestion that it might have been “an error.” Durden then testified that, 

until 2016, no one had told her that her hair loss was permanent. This changed testimony 

does not necessarily conflict with the testimony of Durden’s oncologist, who did not testify 

to telling Durden, definitively, that her hair loss was permanent. Rather, the oncologist 

testified to telling Durden (in April or May 2012) that her hair was “likely not going to 

come back.” 

2 The three lawsuits discussed in Thibodeaux were filed on October 14, 2016, 

October 26, 2016, and December 14, 2016, respectively. See 995 F.3d at 389 n.2. We said 

the causes of action in those lawsuits were “‘reasonably knowable in excess of one year 

prior to [their] filing’ suit.” Id. at 395 (alteration in original) (quoting Fontenot v. ABC Ins. 

Co., 95-1707 (La. 6/7/96); 674 So. 2d 960, 965). So we have necessarily noted that the link 

between Taxotere and persistent alopecia was reasonably knowable by October 14, 2015, 

one year prior to the filing of the earliest-filed lawsuit. See id.

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mark. The only evidence to which Durden has directed our attention that is 

even remotely supportive of the assertion is Durden’s deposition testimony 

that “[t]hey always say it’s going to be temporary,” and “[t]hey never told 

me anything about this was going to be permanent.” It is not clear who 

“they” are or when “they” made the statements Durden describes. 

Regardless, this vague testimony does not come close to establishing that four 

doctors told Durden her hair would grow back, and it does not distance this 

case from Thibodeaux. 

Second, Durden contends this case is different because her “doctors” 

“misdiagnosed her with conditions like ‘female pattern hair loss.’” It is true 

that one of Durden’s doctors—a dermatologist—diagnosed Durden with 

“alopecia . . . and scarring alopecia[,] likely the component of female pattern 

hair loss,” but it is not clear why that diagnosis makes a relevant difference. 

There is no evidence that any doctor told Durden that her persistent hair loss 

was singularly attributable to “female pattern hair loss” to the exclusion of 

other potential causes. To the contrary, the record reflects that Durden and 

her oncologist discussed (in April or May 2012) chemotherapy as the reason 

Durden’s hair had not regrown. What is more, there is no evidence that 

Durden herself reasonably believed that her persistent hair loss was caused 

by “female pattern hair loss.” Durden failed to consider Taxotere as a 

potential cause of her persistent hair loss because she engaged in no 

reasonable inquiry to determine Taxotere’s effects on the persistent loss of 

her hair. 

Third, Durden contends this case is different because the hair on the 

sides of her head regrew over the years. But two of the Thibodeaux plaintiffs 

also experienced partial hair regrowth. See 995 F.3d at 387–88. The partial 

regrowth of their hair did not relieve them of the obligation to engage in a 

“reasonable inquiry into the cause of [their] persistent hair loss.” Id. at 393. 

So too here. Durden knew that after her chemotherapy treatment, her hair 

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was not regrowing, and therefore “had an obligation to further investigate 

the facts in order to pursue [her] claim before the one-year prescriptive 

period elapsed.” Rozas v. Dep’t of Health & Hum. Res., 522 So. 2d 1195, 1197 

(La. Ct. App. 1988). She failed to do so. 

Finally, Durden contends that “[s]he did a lot of research” indicating 

that her “hair was going to come back.” To be sure, Durden testified that 

she “did” “a lot of” unspecified “research” regarding the permanency of her 

hair loss. But the record contains no evidence that Durden “did” any 

investigation or study regarding the cause of her persistent hair loss. 

“[D]iligence required” her to “explore[]” Taxotore as a “possible 

explanation,” Thibodeaux, 995 F.3d at 394, and it is undisputed that she did 

not do so. 

In sum, Durden did not act reasonably in the light of her injuries, and 

the fourth category of contra non valentem does not save her claims.3

V.

In this opinion, we have held that the district court did not err in 

granting summary judgment dismissing Durden’s claims as barred by 

Louisiana’s one-year prescriptive period for delictual actions. The district 

court correctly concluded that Durden’s claims were prescribed on the face 

3 Durden also contends that she is entitled to suspension of the prescriptive period 

under the third category of contra non valentem. That category applies “where the 

[defendant] himself has done some act effectually to prevent the [plaintiff] from availing 

himself of his cause of action.” Renfroe, 809 So. 2d at 953. Sanofi’s alleged attempts to 

conceal the link between Taxotere and permanent hair loss did not prevent Durden from 

availing herself of her causes of action; a reasonable inquiry would have uncovered all of 

the information Durden needed. See Thibodeaux, 995 F.3d at 395 (reasoning that the third 

category of contra non valentem was “inapplicable” because “a reasonable inquiry would 

have led to the information needed”). 

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of the pleadings and that contra non valentem did not save them. Accordingly, 

the judgment of the district court is, in all respects,

 AFFIRMED.

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