Ali v. Sanofi US Services Inc

• Court: District Court, N.D. California
• Decided: September 29, 2023
• Docket: 3:23-cv-02694
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AYSHA ALI, Case No. 3:23-cv-02694-JSC

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 SANOFI-AVENTIS U.S LLC, et al., Re: Dkt. No. 33 Defendants. 11

12 13 Aysha Ali filed suit against Sanofi-aventis U.S. LLC and Sanofi US Services Inc. 14 (collectively “Sanofi”), after allegedly experiencing permanent changes in her hair thickness and 15 length due to a chemotherapy treatment manufactured by Sanofi. (Dkt. No. 33-3 at 3.) Ms. Ali 16 alleges a strict products liability claim due to Sanofi’s failure to warn her about the possibility of 17 permanent hair loss, along with claims related to negligence and fraud. (Dkt. No. 1. at 4.) Now 18 pending before the Court are Defendants’ motion for summary judgment and Plaintiff’s motion for 19 a continuance of the summary judgment hearing pursuant to Federal Rule of Civil Procedure 20 56(d). Having carefully reviewed the parties’ submissions, the Court GRANTS Defendants’ 21 motion for summary judgment and DENIES Plaintiff’s motion for a Rule 56(d) continuance. 22 Defendants met their burden of demonstrating Ms. Ali’s claims are barred by California’s statute 23 of limitations as a matter of law. Moreover, Ms. Ali has failed to demonstrate any genuine issue of 24 material fact that could warrant a reasonable factfinder finding an exception to the statute of 25 limitations applies. 26 BACKGROUND 27 Sanofi manufacturers Taxotere, a chemotherapy used to treat breast cancer. (Dkt. No. 6-26 1 33-3 at 15-16; 33-4 at 18.) Before beginning chemotherapy, Ms. Ali was warned she would 2 experience hair loss, but told the hair would start to return within a few weeks of stopping 3 chemotherapy. (Dkt. No. 40-2 at 7.) A few weeks after stopping chemotherapy, Ms. Ali started to 4 see some of her hair come back. (Id.) However, in the years after, Ms. Ali noticed the “length and 5 thickness” was not the same as before her chemotherapy treatment. (Id. at 17.) 6 Ms. Ali learned about the connection between Taxotere and permanent hair loss during a 7 phone call with an attorney who asked if she had ever used Taxotere and told her about an ongoing 8 lawsuit against manufacturers of Taxotere. (Dkt. Nos. 33-4 at 5; 40-2 at 4.) After that phone call, 9 Ms. Ali filed a lawsuit against Defendants on December 5, 2017, as part of a multidistrict 10 litigation (“MDL”). In re Taxotere (Docetaxel) Product Liability Litigation MDL (E.D. La., MDL 11 No. 2740) (Dkt. No. 33-3 at 3.) Ms. Ali asserts Taxotere caused her to suffer permanent 12 chemotherapy induced alopecia, or hair loss, and alleges various claims against Defendants as a 13 result, including failure to warn, negligent misrepresentation, and fraudulent concealment of 14 Taxotere’s risks. (Dkt. Nos. 40 at 2; 7-1 at 13.) Defendants assert Ms. Ali’s claims are time- 15 barred, as they are subject to a two-year statute of limitations. 16 DISCUSSION 17 A. Legal Standard 18 Summary judgment is appropriate if “there is no genuine dispute as to any material fact 19 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving 20 party bears the burden of producing evidence negating an essential element of each claim on 21 which it seeks judgment or showing the nonmoving party cannot produce evidence sufficient to 22 satisfy its burden of proof at trial. Nissan Fire & Mar. Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 23 1102 (9th Cir.2000). “[T]he inferences to be drawn from the underlying facts contained in such 24 materials must be viewed in the light most favorable to the party opposing the motion.” United 25 States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Once the moving party meets its burden, the 26 nonmoving party must show a material factual dispute exists. California v. Campbell, 138 F.3d 27 772, 780 (9th Cir.1998). 1 56(d) request to continue the summary judgment hearing to allow for further discovery to 2 supplement the record. (Dkt. No. 39.) Rule 56(d) provides:

3 If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a 4 motion for summary judgment], the court may: (1) defer considering the motion [for summary judgment] or deny it; (2) allow time to 5 obtain affidavits or declarations or to take discovery; and (3) issue any other appropriate order. 6 “A party seeking additional discovery under Rule 56(d) must explain what further discovery 7 would reveal that is essential to justify [its] opposition to the motion[ ] for summary judgment.” 8 Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (quotations and citations omitted). 9 While the party is not required to know with certainty what discovery will uncover, “for purposes 10 of a Rule 56(d) request, the evidence sought must be more than ‘the object of pure speculation.’” 11 Id. (quoting California v. Campbell, 138 F.3d 772, 779–80 (9th Cir. 1998)). “In particular, ‘[t]he 12 requesting party must show [that]: (1) it has set forth in affidavit form the specific facts it hopes to 13 elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential 14 to oppose summary judgment.’” Id. (quoting Family Home & Fin. Ctr., Inc. v. Fed. Home Loan 15 Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)). 16 B. Applicable Statute of Limitations 17 Both parties agree California law applies to this dispute. Further, pursuant to California 18 Code of Civil Procedure § 335.1, both sides agree a two-year statute of limitations applies to all 19 Ms. Ali’s claims because they all relate to “personal injury claims based on [a] defective 20 product[].” Eidson v. Medtronic, Inc., 40 F. Supp. 3d 1202, 1217 (N.D. Cal. 2014) (citing Soliman 21 v. Philip Morris Inc., 311 F.3d 966, 971 (9th Cir. 2002)). 22 Traditionally at common law, a cause of action accrues when [it] is complete with all of its 23 elements—those elements being wrongdoing, harm, and causation.” Aryeh v. Canon Bus. Sols., 24 Inc., 55 Cal. 4th 1185, 1191 (2013). Thus, in a personal injury action like this one, ordinarily 25 “[t]he action accrues on the date of injury.” Goldrich v. Nat. Y Surgical Specialties, Inc., 25 Cal. 26 App. 4th 772, 779 (1994), as modified (June 15, 1994); see also Zamudio-Soto v. Bayer Healthcare 27 Pharms. Inc., No. 15-CV-00209-LHK, 2017 WL 386375, at *6 (N.D. Cal. Jan. 27, 2017) 1 (“Ordinarily, a personal injury cause of action accrues and the statute of limitations begins to run 2 at the time of the injury to the future plaintiff.”) (cleaned up). 3 Defendants have the initial burden of establishing Plaintiff’s claims accrued more than two 4 years before this lawsuit was filed. See Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 1191 5 (2013). However, the inquiry does not end there, as California law contains “a handful of 6 equitable exceptions to and modifications of the usual rules governing limitations periods.” Id. at 7 1192. “These doctrines may alter the rules governing either the initial accrual of a claim, the 8 subsequent running of the limitations period, or both.” Id. If Defendants satisfy their burden of 9 proving Plaintiff’s claim accrued more than two years before she filed suit as a matter of law, then 10 the burden transfers to the Plaintiff, who must establish an exception to the statute of limitations 11 period applies to her claims. Id.; see also Invs. Equity Life Holding Co. v. Schmidt, 195 Cal. App. 12 4th 1519, 1533 (2011), as modified (June 15, 2011) (explaining the plaintiff has the burden of 13 establishing “[b]oth the discovery rule and fraudulent concealment doctrine”). 14 1. Plaintiff’s claims accrued more than two years before she filed suit. 15 It is undisputed Ms. Ali began taking Taxotere on August 15, 2008 (Dkt. No. 33-3 at 15- 16 16) and stopped taking Taxotere in October of 2008 (Dkt. No. 33-4 at 18). Ms. Ali filed her 17 complaint more than nine years later, on December 5, 2017. (Dkt. No. 33-3 at 2). 18 The parties disagree as to when the statute of limitations began to accrue in this case. As an 19 initial matter, the parties dispute when the “injury” in this case occurred. Defendants point to the 20 Master Complaint, which defines “Permanent Chemotherapy Induced Alopecia”—the asserted 21 injury in this case—as “an absence of or incomplete hair regrowth six months beyond the 22 completion of chemotherapy.” (Dkt. No. 6-26 ¶ 181.) Plaintiff’s Short Form Complaint 23 incorporates by reference the Master Long Form Complaint. (Dkt. No. 1 at 1.) “Judicial 24 admissions are formal admissions in the pleadings which have the effect of withdrawing a fact 25 from issue and dispensing wholly with the need for proof of the fact. [They] are conclusively 26 binding on the party who made them.” Spokane Law Enf’t Fed. Credit Union v. Barker (In re 27 Barker), 839 F.3d 1189, 1195 (9th Cir. 2016)) (cleaned up); see also Hakopian v. Mukasey, 551 1 So, based on the definition in the long-form complaint, “Ms. Ali pleaded that she sustained her 2 injury by April 2009,” or six months after she ended her chemotherapy treatment. (Dkt. No. 33 at 3 18.)1 See also In re Taxotere (Docetaxel) Prod. Liab. Litig., 995 F.3d 384, 390 (5th Cir. 2021) 4 (analyzing the same Long-Form Master Complaint and finding the injury of permanent 5 chemotherapy induced alopecia “is sustained when, six months after the completion of 6 chemotherapy, a person has an absence of or incomplete hair regrowth”). 7 Ms. Ali disputes the April 2009 designation as the date of injury, but Ms. Ali has not 8 provided an alternative date of injury. Choosing a definitive date for the alleged injury is 9 somewhat complicated. Ms. Ali has never been diagnosed with permanent hair loss. (Dkt. No. 10 33-4 at 10.) Moreover, Ms. Ali’s hair loss was not linear: “some of Ms. Ali’s hair that was not 11 present at six months post chemotherapy did come back two years after treatment ended.” (Dkt. 12 No. 40 at 7.) However, even after two years, Ms. Ali testified the “length and thickness” of her 13 hair had not returned to her hair’s pre-chemotherapy levels. (Dkt. No. 33-4 at 33.) 14 Thus, the undisputed evidence establishes the latest Ms. Ali’s injury could have occurred is 15 October 2010—two years after Ms. Ali completed her chemotherapy treatment, when she realized 16 her hair was noticeably less thick and long than it had been before chemotherapy. As the Court 17 must view all facts in the light most favorable to Plaintiff, the Court will proceed by assuming this 18 was the date of injury. Since October 2010 is more than two years before Ms. Ali filed suit, 19 Defendants met their burden of establishing Ms. Ali’s claims are, on their face, barred by the 20 statute of limitations. 21 C. Exceptions to the Statute of Limitations 22 As Defendants met their burden of establishing Plaintiff’s product liability claims are 23 barred by two-year statute of limitations as a matter of law, the burden shifts to Plaintiff to show 24 some exception to the statute of limitations, or at least to demonstrate a genuine dispute of 25 material fact as to whether such an exception applies. 26 1 At oral argument, Plaintiff offered to amend the Master Complaint so Permanent Chemotherapy 27 Induced Alopecia is no longer defined as occurring six months after the end of chemotherapy. 1 Plaintiff alleges two such exceptions warrant extending the normal two-year statute of 2 limitations in this case: first, she asserts the “discovery rule” should “postpone[] accrual” of her 3 cause of action until 2017 because before then “a reasonable inquiry would not have led her to 4 know of a connection between Taxotere and [Permanent Chemotherapy Induced Alopecia]” (Dkt. 5 No. 40 at 8.); and second, she asserts the doctrine of fraudulent concealment should toll the statute 6 of limitations because “Plaintiff did not have actual or constructive knowledge of the facts giving 7 rise to her claims as a result of Defendants’ intentional concealment.” (Dckt. No. 40 at 9.) 8 1. Discovery Rule 9 Under California law, “a two-part analysis is used to assess when a claim has accrued 10 under the discovery rule.” Alexander v. Exxon Mobil, 219 Cal. App. 4th 1236, 1251 (2013). First, 11 courts determine “whether the plaintiff possessed information that would cause a reasonable 12 person to inquire into the cause of his injuries.” Id. The “inquiry duty arises when the plaintiff 13 becomes aware of facts that would cause a reasonably prudent person to suspect his injuries were 14 the result of wrongdoing.” Alexander, 219 Cal. App. 4th at 1251. Since, in a products liability 15 case, “wrongdoing is essential to the cause of action” a “plaintiff’s ignorance of wrongdoing 16 involving a product’s defect will usually delay accrual.” Fox v. Ethicon Endo-Surgery, Inc., 35 17 Cal. 4th 797, 813 (2005). 18 If the plaintiff was on such inquiry notice, then her duty to investigate is triggered and “it 19 must next be determined whether ‘such an investigation would have disclosed a factual basis for a 20 cause of action.’” Id. (quoting Fox, 35 Cal.4th at 807). If a plaintiff is on inquiry notice, the 21 plaintiff must establish “(1) the time and manner of discovery and (2) the inability to have made 22 earlier discovery despite reasonable diligence.” Plumlee v. Pfizer, Inc., 664 F. App'x 651, 653 23 (9th Cir. 2016) (quoting Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623, 638 (2007)). This 24 analysis contains both a subjective and objective component. “A plaintiff is held to her actual 25 knowledge as well as knowledge that could reasonably be discovered through investigation of 26 sources open to her.” Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1109 (1988). Thus, “[a] patient 27 who actually learns of the dangerous side effects of a drug she has taken ignores her knowledge at 1 Nelson v. Indevus Pharms., Inc., 142 Cal. App. 4th 1202, 1208 (2006). “The question when a 2 plaintiff actually discovered or reasonably should have discovered the facts for purposes of the 3 delayed discovery rule is a question of fact unless the evidence can support only one reasonable 4 conclusion.” Ovando v. Cnty. of Los Angeles, 159 Cal. App. 4th 42, 61 (2008). 5 On the summary judgment record, every reasonable trier of fact would find Plaintiff was 6 on inquiry notice more than two years before she filed suit. In her deposition, Ms. Ali admitted 7 (1) she knew her sister’s hair never fully regrew after her sister used Taxotere in the late 1990s or 8 early 2000s (Dkt. No. 33-4 at 11-13); (2) before Ms. Ali began chemotherapy, she “assum[ed] it 9 would take about a year or two” to regrow her hair (Dkt. No. 33-4 at 27); (3) two years after 10 completing chemotherapy, in 2010, Ms. Ali’s hair had not regrown to the same “length and 11 thickness” as it had been before chemotherapy (Dkt. No. 33-4 at 33); and (4) Ms. Ali always 12 attributed her hair loss “[t]o the chemo drug.” (Dkt. No. 33-4 at 31.) Based on Ms. Ali’s own 13 testimony, every reasonable trier of fact would find by 2010 and certainly before 2015, a 14 reasonably prudent person in Ms. Ali’s position would realize they were suffering from permanent 15 hair loss and suspect their chemotherapy drugs were the wrongful cause of that hair loss. 16 Plaintiff’s contentions do not create a genuine dispute of material fact as to when Plaintiff 17 was on inquiry notice. First, Ms. Ali asserts she did not learn “her hair loss may be permanent” 18 until 2017, when she “spoke with an attorney” who asked if she had ever used Taxotere and told 19 her about ongoing cases against Defendants. (Dkt. No. 40 at 8.). However, Ms. Ali’s admission 20 she has always attributed her hair loss to chemotherapy compels the conclusion she suspected 21 wrongdoing by 2010, when she realized her hair had not grown back as expected. Second, 22 Plaintiff argues “medical literature did not reflect a consensus causal connection” between 23 Taxotere and permanent hair loss “until 2020,” so Ms. Ali was not put on inquiry notice before 24 then. (Dkt. 40 at 8.) Plaintiff does not cite any evidence for her assertion medical literature did 25 not connect Taxotere to permanent hair loss until 2020. Moreover, Plaintiff’s assertion Ms. Ali 26 couldn’t have known the “wrongful cause” of her hair loss until 2020 is belied by Ms. Ali filing 27 this suit in 2017. 1 cause of her injuries—moving the Court to the second step of the discovery rule analysis. Ms. Ali 2 offers evidence from which a reasonable trier of fact could find the time and manner of her 3 discovery: she learned about the connection between Taxotere and hair loss during a phone call 4 with an attorney who asked if she had ever used Taxotere. (Dkt. Nos. 33-4 at 5; 40-2 at 4.) Ms. 5 Ali remembers this conversation occurring sometime in the fall of 2017. (Dkt. No. 33-4 at 9.) 6 However, the record does not provide evidence from which a reasonable trier of fact could 7 find she was unable “to have made earlier discovery despite reasonable diligence.” Plumlee, 664 8 F. App’x at 653 (cleaned up). The Master Complaint itself alleges articles reporting a link 9 between Taxotere and permanent hair loss—citing medical journals’ publications beginning in 10 2006, a 2010 article from The Globe and Mail, and a 2010 CBS News article which described a 11 group of women who called themselves “Taxotears,” after they were left permanently bald after 12 using Taxotere. (Dkt. No. 6-26 ¶¶ 150-162.) Each article described a link between permanent 13 hair loss and Taxotere. (Id.) Since the Master Long Form Complaint is a judicial admission, 14 Plaintiff has admitted with reasonable diligence she could have discovered a link between her 15 unexpected hair loss and Taxotere. See also In re Taxotere (Docetaxel) Prod. Liab. Litig., 995 16 F.3d 384, 394 (5th Cir. 2021) (finding the articles described in the same master complaint indicate 17 “[a] reasonable inquiry would have uncovered at least some information that linked Taxotere to 18 persistent alopecia”); In re Taxotere (Docetaxel) Prod. Liab. Litig. (“Durden”), 860 F. App'x 886, 19 890–91 (5th Cir. 2021) (same); Plumlee, 664 F. App’x at 653-64 (finding articles which were 20 “publicly available during the relevant limitations period” indicated plaintiff would have 21 discovered the link between her injury and the defendant). 22 The evidence cited by Plaintiff does not create a genuine dispute. She cites to the 23 deposition of her oncologist, who “estimate[d]” he first learned “Taxotere was associated with the 24 increased risk of permanent hair loss . . . somewhere probably in the 2013 to ’15 timeframe.” 25 (Dkt. No. 40-7 at 6.) But this evidence does not support an inference that any investigation into 26 the cause of her unanticipated hair loss would have been futile. There is no evidence she asked 27 her oncologist about her perceived hair loss. There is no evidence her oncologist ever looked into 1 lack of awareness about a potential problem with a drug creates a genuine dispute as to whether a 2 plaintiff who suspects wrongdoing with reasonable diligence could not have discovered the factual 3 basis for her cause of action, especially when the plaintiff’s complaint alleges causation based 4 upon articles published years before the plaintiff filed suit. 5 Ms. Ali asserts as a “lay person,” she would have been unable to “ascertain not only the 6 permanency of her injury, but that Taxotere was associated with” it before 2017. (Dkt. No. 40 at 7 8.) Again, she cites nothing to support this attorney argument. Moreover, California courts have 8 indicated “[a] duty of inquiry arises independently of a particular plaintiff’s subjective 9 knowledge,” and the duty of inquiry is not lessened when a plaintiff has “no experience” in the 10 relevant field. Mills v. Forestex Co., 108 Cal. App. 4th 625, 649 (2003). 11 Finally, Ms. Ali notes Defendants did not “update[] their warning label to reflect even case 12 reports of [permanent chemotherapy induced alopecia] being reported with Taxotere” until 13 December 2015. (Id.) However, under California law, “[a]ggrieved parties generally need not 14 know the exact manner in which their injuries were effected, nor the identities of all parties who 15 may have played a role therein.” Bernson v. Browning-Ferris Indus., 7 Cal. 4th 926, 932, (1994); 16 see also Kline v. Turner, 87 Cal. App. 4th 1369, 1371, 105 Cal. Rptr. 2d 699 (2001) (“Discovery” 17 occurs “not when the plaintiff became aware of the specific wrong alleged, but when the plaintiff 18 suspected or should have suspected that an injury was caused by wrongdoing.”). Thus, even if the 19 medical field had not conclusively established Taxotere caused hair loss in 2010, Ms. Ali’s 20 suspicion her “chemo drug” was the cause of her hair loss indicates Ms. Ali’s claims began to 21 accrue as soon as she was injured and suspected her chemotherapy treatment caused that injury. 22 See Fox, 35 Cal. 4th at 807 (“Under the discovery rule, suspicion of one or more of the elements 23 of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the 24 statute of limitations period.”). 25 In sum, Plaintiff has failed to demonstrate a genuine issue of material fact as to whether the 26 delayed discovery rule applies to her case. 27 2. Fraudulent Concealment 1 existence of a cause of action in such a way that the plaintiff, acting as a reasonable person, did 2 not know of its existence.” Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1060 (9th 3 Cir.2012). To establish fraudulent concealment, Plaintiff must prove “[Defendants] affirmatively 4 misled [Plaintiff], and that [Plaintiff] had neither actual nor constructive knowledge of the facts 5 giving rise to [her] claim despite [her] diligence in trying to uncover those facts.” Id. 6 Ms. Ali claims “[h]ad Defendants been forthcoming with the link between [permanent 7 chemotherapy induced alopecia] and Taxotere with Ms. Ali’s prescribing oncologist, he would 8 have informed her” of the risks of Taxotere. (Dkt. No. 40 at 9.) This claim mirrors Ms. Ali’s 9 complaint allegations that Defendants failed to warn her of Taxotere’s potential impact on 10 alopecia. (Dkt. No. 1 at 4.) However, to establish fraudulent concealment, the plaintiff must 11 establish “active conduct by a defendant, above and beyond the wrongdoing upon which the 12 plaintiff’s claim is filed,” which “prevent[ed] the plaintiff from suing in time.” Guerrero v. Gates, 13 442 F.3d 697, 706 (9th Cir.2006) (quotation marks and citations omitted); see also Lukovsky v. 14 City & Cnty. of San Francisco, 535 F.3d 1044, 1052 (9th Cir. 2008) (“The primary problem with 15 plaintiffs’ argument is that their alleged basis for [fraudulent concealment] is the same as their 16 cause of action”). 17 Here, the fraudulent concealment Plaintiff cites as the reason the statute of limitations 18 should be tolled is the very same as the alleged actions which form the bases of her claims. For 19 that reason alone, Plaintiff’s fraudulent concealment claim cannot toll the statute of limitations in 20 this case. Moreover, as discussed above, the undisputed evidence demonstrates Plaintiff did have 21 “constructive knowledge of the facts giving rise to [her] claim” before 2015, and Plaintiff 22 demonstrated no “diligence” in trying to discover what caused her hair loss before 2015. Hexcel 23 Corp., 681 F.3d at 1060; see also Yetter v. Ford Motor Co., No. 19-CV-00877-LHK, 2019 WL 24 3254249, at *5 (N.D. Cal. July 19, 2019) (“[T]o merit application of the discovery rule or 25 fraudulent concealment tolling, a plaintiff must allege that he exercised due diligence to uncover 26 his injury”) (citing Allen v. Similasan Corp., 96 F. Supp. 3d 1063, 1071 (S.D. Cal. 2015)). Thus, 27 Plaintiff has failed to establish a genuine dispute of material fact as to whether the statute of 1 *** 2 In sum, viewing all facts in the light most favorable to Plaintiffs, the latest Ms. Ali 3 sustained her injury was October 2010. Moreover, Ms. Ali has failed to raise a genuine issue of 4 material fact as to any exception to the application of the regular, two-year statute of limitations in 5 this case. Thus, because Ms. Ali did not file suit until December of 2017, all her claims are barred 6 by the statute of limitations, and the Court GRANTS Defendant’s motion for summary judgment. 7 Because the statute of limitations bars all of Plaintiff’s claims, including her claims related to 8 fraud, the Court declines to address Defendants’ additional fraud argument. 9 E. Plaintiff’s Rule 56(d) Request for Continuance 10 Plaintiff asks Defendants’ motion for Summary Judgment be continued until after the close 11 of discovery. As a threshold matter, Ms. Ali did not file a Rule 56(d) affidavit with her motion 12 and has not set forth with specificity what facts she would seek if further discovery were 13 permitted. This alone suffices to deny her 56(d) motion. See In re Volkswagen “Clean Diesel” 14 Mktg., Sales Pracs., & Prod. Liab. Litig., No. 15-MD-02672-CRB, 2023 WL 4163397, at *10 15 (N.D. Cal. June 22, 2023) (“Because the Counties fail to pinpoint specific facts that further 16 discovery would elicit, the Counties’ requests for further discovery [under Rule 56(d)] are 17 denied.”) 18 Moreover, Ms. Ali has failed to show how any further discovery could change the Court’s 19 statute-of-limitations analysis. The only facts Plaintiff describes as “relevant to the equitable 20 tolling of the statute of limitations” relate to facts Plaintiff has already learned from the deposition 21 of Ms. Ali’s treating doctor. (Dkt. No. 39 at 3.) Moreover, the Court’s determination Ms. Ali’s 22 claims are barred by the statute of limitations is based on Ms. Ali’s own allegations and her 23 deposition testimony. Ms. Ali has not identified any further discovery that could alter the Court’s 24 conclusion that Ms. Ali’s claims are time barred based on Ms. Ali’s own admissions. 25 Ms. Ali’s substantive arguments to the contrary are unpersuasive. First, she asserts she has 26 “not yet had an opportunity to amend her short form complaint to plead facts specific to her” fraud 27 claim, so Defendant’s motion for summary judgment based on Plaintiff’s failure to plead 1 determined Ms. Ali’s claims are barred by the statute of limitations, not because she failed to 2 || adequately plead her claims. Amending her pleading to include “facts specific to her” fraud 3 claims would not change the Court’s statute-of-limitations analysis. 4 Second, Plaintiff argues the Court should continue the summary judgment motion because 5 “Ms. Ali does not know the nature of Defendants’ affirmative defenses” and Defendants should 6 || not be allowed to take the position Taxotere does not cause permanent hair loss, but also argue 7 Plaintiff was on notice in the years leading up to this lawsuit about the connection between 8 || Taxotere and hair loss. (Dkt. No. 39 at 3.) Plaintiffs assertions are incorrect—Defendants can 9 argue both causation and assert Plaintiff was on notice for statute-of-limitations purposes. See, 10 e.g., Dent v. Nat’l Football League, 2023 WL 2983580, at *2 (9th Cir. Apr. 18, 2023). 11 Finally, Ms. Ali argues the MDL Court previously ruled alternative causation arguments of 12 || Defendants are better left for a jury to consider after completion of expert discovery. (Dkt. No. 39 13 at 2.) However, Plaintiff does not explain what information she would hope to obtain from expert 14 || discovery, or how expert discovery would make any difference to her statute-of-limitations 3 15 arguments. a 16 Thus, the Court DENIES Plaintiff's Rule 56(d) motion for a continuance. CONCLUSION 18 For the foregoing reasons, the Court GRANTS the Defendants’ motion for summary 19 || judgment and DENIES Plaintiff's motion for a Rule 56(d) continuance. 20 This Order disposes of Docket Numbers: 33, 35. 21 IT IS SO ORDERED. 22 || Dated: September 29, 2023 23

ACQUELINE SCOTT CORLE 25 United States District Judge 26 27 28