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Xarelto Mass Tort In Philadelphia To Use Bellwether Selection Plan

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The state court judge presiding over all Xarelto lawsuits consolidated as part of a “mass tort” in the Philadelphia Court of Common Pleas indicates that a selection process will be established to determine which “bellwether” cases go to trial first, rather than giving priority to the earliest filed cases.

There are currently more than 1,000 product liability lawsuits centralized Judge Arnold New in the Philadelphia Xarelto mass tort, each raising similar allegations that Johnson & Johnson’s Janssen Pharmaceuticals subsidiary failed to adequately warn consumers and the medical community about the bleeding risk associated with the novel oral anticoagulant.

While all anticoagulants carry a risk of bleeding, plaintiffs allege that Janssen failed to adequately warn about the severity of the Xarelto side effects, as well as the lack of a reversal agent that doctors could use to reverse the blood thinning effects of the medication.

In an order issued last week, Judge New indicated that there will be a selection process for a group of Xarelto cases that will be prepared for early trial dates in the state. Known as “bellwether” trials, such cases would seek to be representative of the bulk of claims filed in the mass tort, excluding cases that involve unique or individual fact patterns that would prevent the results from helping the parties gauge how juries may respond in future trials.

While such bellwether trials are common in federal courts, Pennsylvania state court has typically followed a “first in, first out” method of dealing with mass tort trials, meaning that the first cases filed will be the first to go to trial. However, attorneys on both sides of Xarelto litigation have argued that the bellwether system will likely be better for bringing about a faster resolution in Pennsylvania.

Judge New has called for 24 Xarelto claims to be selected as potential bellwether cases, 10 involving plaintiffs who suffered gastrointestinal bleeding and six who suffered brain bleeds after taking Xarelto to prevent strokes due to atrial fibrillation, and eight cases filed by plaintiffs who suffered bleeding events after taking Xarelto to prevent deep vein thrombosis and other blood clot problems.

Eighteen of the cases will be chosen by the legal teams, nine for each side, and six will be selected randomly. The first case would go to trial in late 2017.

A similar bellwether trial process has previously been established in the federal court system, were almost 12,000 Xarelto cases filed in U.S. District Courts nationwide are centralized as part of an MDL, or multidistrict litigation. U.S. District Judge Eldon Fallon is presiding over the federal Xarelto MDL in the Eastern District of Louisiana, where a small group of cases are being prepared for early trial dates, which are designed to begin in March 2017.

While the outcomes of these trials will not be binding on other claims, they will be closely watched by lawyers involved in the litigation, as they may influence eventual Xarelto settlement negotiations that would be necessary to avoid thousands of individual trials nationwide.

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