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Xarelto Mass Tort Adopts MDL Bellwether Selection Process

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In January 2015, Philadelphia Court of Common Pleas Judge Kevin Dougherty created a mass tort docket for all state-filed Xarelto lawsuits. At that time, about 75 cases were centralized in the same court, with plaintiffs alleging excessive bleeding injuries after taking the anti-coagulant drug.

Now, the court has indicated that the parties will go through a process similar to that used in multidistrict litigation (“MOL”) to choose cases for early bellwether trials. Rather than giving priority to those cases that were filed first, the court will create a discovery pool of cases from which a final few will be chosen for trail.

Plaintiffs Claim Xarelto Manufacturers Failed to Warn About Side Effect Risks

The mass tort was originally established to prevent duplicative discovery and inconsistent rulings, to save judicial resources, and to promote the efficient resolution of all the cases. Defendants, Janssen Pharmaceuticals and Bayer, also have strong ties to Pennsylvania, though they originally opposed the establishment of the mass tort.

Today, there are over 1,000 Xarelto lawsuits pending in Philadelphia, with each claiming that the defendants failed to provide adequate warnings about the risks associated with the drug. A new-generation blood thinner, the product was advertised by the defendants as being more convenient than warfarin (Coumadin), the leading blood thinner for decades, because it required no dietary restrictions or blood monitoring.

Later studies, however, suggested that some populations, including the Japanese and the elderly, could have benefitted from blood monitoring, as it could have prevented cases of uncontrolled bleeding. Though all blood thinners come with a risk of bleeding events, some studies have indicated that Xarelto presents a higher-than-normal risk of gastrointestinal bleeding.

Pennsylvania Mass Tort Will Follow Typical Bellwether Selection Process

When the mass tort was established, Judge Arnold L. New was assigned to coordinate proceedings. He recently signed a court order indicating that the parties will follow a process similar to that of the parties in the Xarelto MDL to choose a select few cases for early trial.

These are “bellwether” trials and are often used to gauge how juries may respond to the evidence. In some cases, though not all, the outcome of these early trials can encourage settlement negotiations between the parties. Thus, the cases are usually chosen to best represent the bulk of the claims filed in the court.

The Judge’s order marks a departure from how Pennsylvania state courts usually do things. They most often allow the cases that were filled in the court first to go to trial first, but Xarelto lawyers have argued that this would be inefficient in this situation, and have expressed their preference for the standard MDL bellwether selection process.

Each Side to Choose 9 Xarelto Cases

The Judge has tasked the parties to come up with 24 cases to be considered for bellwether trials. Of those, 10 need to involve plaintiffs who took Xarelto to prevent stroke and then suffered gastrointestinal bleeding, and six who took the drug to prevent stroke and then suffered excessive bleeding in the brain. The final eight are to be plaintiffs who took Xarelto to prevent deep vein thrombosis and other clotting problems, and then suffered bleeding events.

Each side will choose 9 cases, and six will be selected randomly. The first trial has been scheduled to begin in late 2017.