New Trial Sought in First Two Xarelto Bellwether Lawsuits, As Third Case Set to Begin

As a third Xarelto trial is set to begin early next month, to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout thousands Xarelto lawsuits pending in the federal court system, plaintiffs from the first two bellwether cases have filed requests for new trials after their trials ended in defense verdicts.

Xarelto (rivaroxoaban) is part of a new generation of novel oral anticoagulants that was introduced by Bayer Healthcare and Janssen Pharmaceuticals in 2011. Amid aggressive marketing, the medication quickly became widely used as an alternative to Coumadin (warfarin), which had been the go-to anti-clotting treatment for decades. However, as Xarelto bleeding problems were reported among individuals nationwide, mounting litigation has been filed against the drug makers in recent years.

There are currently more than 18,000 lawsuits pending throughout the federal court system, each involving similar claims that individuals suffered severe and uncontrollable bleeds while using the anticoagulant, alleging that inadequate warnings were provided about the potential side effects of Xarelto.

Given the similar questions of fact and law raised in the complaints, all federal cases are centralized before U.S. District Judge Eldon Fallon in the Eastern District of Louisiana, as part of an MDL or multidistrict litigation. As part of the coordinated proceedings, Judge Fallon has selected a small group of representatives cases for a series of bellwether trials, which began earlier this year and are expected to continue throughout the summer.

While the outcomes of these bellwether trials are not binding on others in the litigation, they are being closely watched by lawyers involved in the cases, as they may help gauge how juries will respond to certain evidence and testimony that will be presented throughout various cases.

In May, the first Xarelto jury trial ended in a defense verdict, after a jury found that Joseph Bourdreaux, Jr. failed to meet the necessary burden of proof. Last month, a second bellwether trial, involving claims filed by Sharon Orr, also ended in a defense verdict.

On July 18, Judge Fallon issued an order (PDF) indicating that the Court will consider retrial motions filed in both cases on September 13. The motions will be heard together, given the similarity of the arguments that will be presented. Originally, the motion for a new trial for Boudreaux was slated for July 21, and Orr’s retrial motion was set for August 9.

The motions come as the third Xarelto bellwether trial is slated to begin on August 7. That case involves a lawsuit filed by Dora Mingo, of Mississippi, who claims that she suffered bleeding injuries in February 2015, after undergoing a right total hip replacement the month before. She was diagnosed with deep vein thrombosis in her right leg and was prescribed Xarelto.

According to Mingo’s claims, she suffered an acute upper gastrointestinal bleed, severe anemia, and a 6mm bleeding ulcer of the fundus. Her lawsuit claims that her injuries could have been avoided if her doctor had been told by the makers of Xarelto that standard laboratory testing would have shown that she was at a significantly increased risk of bleeding.

Since Xarelto was marketed as a drug that was safe to use without regular blood tests, Mingo alleges that her doctor was led to believe that those tests were unnecessary and ineffective. The makers of Xarelto claim that her bleeding injuries were due to the ulcer and not Xarelto side effects.

Similar allegations were raised in thousands of Pradaxa lawsuits filed several years ago, as that medication hit the market before Xarelto. However, the maker of that competing drug ultimately agreed to pay $650 million in Pradaxa settlements just before the first bellwether trials were set to begin, with an average of about $150,000 per claim.

Following a series of bellwether trials against Bayer and Janssen, if Xarelto settlements or another resolution for the litigation is not reached, thousands of individual cases may be remanded back to U.S. District Courts nationwide for separate trial dates.