Xarelto Bellwether Selection Process in MDL Outlined by Judge Fallon

The U.S. District Judge presiding over all federal Xarelto lawsuits has laid out the process for selecting 40 cases that will be part of a bellwether discovery pool, out of which at least four claims are expected to be chosen for the first trial dates in early 2017. 

There are currently more than 2,800 product liability lawsuits pending against Bayer and Johnson & Johnson’s Janssen subsidiary over failure to adequately warn about the bleeding risks linked to side effects of Xarelto, which is part of a new generation of blood thinners introduced in recent years as a replacement for warfarin among individuals at risk of clots.

Since December 2014, the federal Xarelto litigation has been consolidated as part of an MDL, or multidistrict litigation, with all cases centralized before U.S. District Judge Eldon Fallon in the Eastern District of Louisiana for coordinated handling during discovery and a series of early “bellwether” test trials, which are designed to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout a large number of claims.

Judge Fallon ordered plaintiffs and defendants to come up with a pool of Xarelto bellwether cases, which will go through case-specific discovery and dispositive motions in preparation for a series of early trial dates that are expected to begin between February 2017 and May 2017. However, the sides failed to resolve disputes over how the cases would be selected.

In a case management order (PDF) issued on November 20, Judge Fallon outlined his own case selection plan to resolve the dispute, indicating that each side will select 10 cases, with an additional 20 cases selected randomly from claims filed in certain venues.

The plan calls for 20 of the cases to originate in the Eastern District of Louisiana, four from federal court in Mississippi, two from federal court in Texas, seven cases in any seven states chosen by plaintiffs, and seven cases from any seven states chosen by defendants. Each of the seven states selected must have at least 20 cases eligible for inclusion in the bellwether plan.

Judge Fallon has directed the parties to continue to meet to determine eligibility criteria for case selections and appropriate case categories, which will be subject to an order at a later date by the Court. The next status conference is scheduled for December 21.

The parties have also been directed to develop a plan for selecting the four cases from this bellwether discovery pool that will become the first to go before juries, indicating that a selection method will be developed by June 10, 2016.

While the outcomes of these Xarelto bellwether trials will not be binding on other claims in the litigation, they are designed to help the parties determine the relative strengths and weaknesses of their claims.

Following the bellwether process, if Xarelto settlements are not reached to resolve large numbers of cases, Bayer and Johnson & Johnson could face hundreds of different trials scheduled in courts throughout the U.S.