Xarelto litigants anticipate selection and start of federal bellwether trials in 2017

By Nicholas Malfitano | Jul 11, 2016

NEW ORLEANS – As more and more cases continue to be filed by plaintiffs and their counsel against the manufacturers of the blood thinner Xarelto, these litigants are looking towards the horizon of bellwether cases in this matter to be heard next year.

Per Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana, bellwether trials in the multi-district litigation (MDL) revolving around Xarelto will begin in early 2017, with the selection and scheduling process currently underway.

The federal Xarelto MDL is listed as Case No. 2592, consolidating individual actions filed against Xarelto’s manufacturers, Bayer and Janssen Pharmaceuticals.

Litigants charge Bayer and Janssen failed to properly warn patients that Xarelto use presented increased risks for cranial and gastrointestinal bleeding when taken once daily. Risks which the plaintiffs say, allegedly, would be greatly decreased if the drug was taken twice daily and monitored properly.

Before the main cases reach federal courtrooms, 40 bellwether cases are being selected as a result of a January order from Fallon. These bellwether actions will enable litigants and counsel to see how jury panels react to evidence presented.

“The problem in the past with selecting bellwether cases is that we didn’t drill down on the numbers of cases in order to decide what a good bellwether case is. It was a little bit random,” Fallon said in a January status conference. “So what we are trying to do now is to pick 40 cases. Hopefully, these 40 cases mimic the census of the entire litigation.”

At this point, the first four bellwether cases have been slated for hearings. Respectively, the first and second bellwether cases are scheduled to be heard on Feb. 6 and March 13, 2017, in the U.S. District Court for the Eastern District of Louisiana.

Likewise, the third and fourth bellwether cases will be heard on April 24 and May 30, 2017, in federal district courts yet to be specified in Mississippi and Texas, respectively. However, the specific cases for these initial four bellwether dates have yet to be selected and the hearing locations for the latter two are subject to change, per the MDL’s Case Management Order No. 2.

Liaison counsel for the plaintiffs in this MDL are Gerald Edward Meunier of Gainsburgh Benjamin David Meunier & Warshauer, and Leonard A. Davis of Herman Herman & Katz, both based in New Orleans.

Defense liaison counsel in the MDL is James B. Irwin of Irwin Fritchie Urquhart & Moore, also of New Orleans.

In addition to a grouping of Xarelto claims being processed in a Louisiana federal court, more than 800 lawsuits – most from out-of-state plaintiffs – will be handled in Philadelphia’s Complex Litigation Center. The CLC has several mass tort programs, including cases over asbestos and Risperdal, and the percentage of claims belonging to out-of-state plaintiffs is typically in the high 80s.

But how may the cases in the federal Xarelto MDL affect those filed in Philadelphia?

Philadelphia-based attorney Max Kennerly of Kennerly Loutey clarified that while state and federal courts can cooperate on subjects such as scheduling and assistance in settlement talks, the courts may diverge when it comes to key legal orders, such as rulings on expert witnesses and summary judgment motions.

“It’s common to see state and federal courts reach differing rulings on these issues, primarily because the courts follow different precedent and different rules of evidence,” Kennerly said.

Providing an example of this contrast, Kennerly said the Daubert standard would govern the admissibility of expert witness testimony in the federal Xarelto MDL, while the Frye standard would be used as a similar guideline for cases handled in state court, such as those which will be litigated in Philadelphia next year.

The Daubert standard determines if expert testimony is based on “scientifically-valid” criteria and methodology, and can be properly applied to the subject at issue – whereas the Frye standard determines if the method by which a certain piece of evidence is obtained is “generally accepted” by experts in its related field.

“Although there are some areas of law in which one court’s ruling could be very persuasive to another court – such as when the courts have to interpret the law of a particular state – the specifics of each bellwether case are often so different that there’s not much that a court could draw upon in deciding issues raised by a different bellwether,” Kennerly said.

“Although there’s some superficial appeal to the notion that the state and federal courts would bend their rulings to create consistency, the bigger and more important concerns come from federalism and judicial independence. A judge in one court might look to see how another court handled a particular issue, but when it comes to making a decision, the decision is theirs and theirs alone,” Kennerly added.

On the question of why some Xarelto cases are filed in federal court versus state court, Kennerly explained there's no one factor which decides the issue and the claims involved are rarely different.

“In both circumstances, the claims available are usually determined by the law of the state in which the plaintiff resides,” Kennerly said. “Many times, plaintiffs' lawyers will choose the forum with which they are more familiar because they will be better able to follow the overall status of the litigation and, correspondingly, be better able to advise their client.”

With respect to the federal court system, Kennerly spoke to the perception of it being considered the “most convenient and familiar venue” for many lawyers, due to the uniformity of the rules of civil procedure, accessibility of local rules for each court and ease in monitoring docket developments through the ECF/PACER system. Plus, Kennerly noted, for out-of-state lawyers, there is no need to find local counsel to file the case in a federal MDL.

Kennerly indicated results of bellwether cases are significant to future litigation.

“If the bellwethers in one court end up consistently being dismissed or losing, while the bellwethers in another court consistently produce substantial verdicts, that can play a role in settlement discussions,” Kennerly said.

Stanley Thompson, Director of the CLC, said he was “not sure at this juncture” how results from the Xarelto MDL cases could affect cases filed in Philadelphia.

“Hopefully, any verdicts rendered or resolutions reached with respect to the MDL cases will help with narrowing of issues and establishing the value of these cases, generally, which could lead to enhanced management and resolution of matters pending in the Philadelphia program,” Thompson said.

Thompson stated Philadelphia courts could learn more about the Xarelto litigation based on the MDL proceedings, which would be helpful, but those case outcomes may not necessarily affect how things proceed in Philadelphia.

“We usually meet with counsel monthly to address important, relevant issues affecting the litigants and the Court, from pleadings to discovery to trial scheduling. We do work with MDL courts when practicable,” Thompson commented. “However, we proceed based on issues affecting our program and we employ procedures, protocols and processes which best allow us to meet our objectives, including timely and efficient disposition of cases.”

As of this week, about 860 cases had been filed in the Xarelto program at the CLC, overseen by Judge Arnold New. The first cases there were filed in February 2014, and previously-reported indications point toward a bellwether case being heard in a Philadelphia courtroom, at the earliest, in the summer of 2017.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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