The U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated all federal Xarelto lawsuits into one court in the Eastern District of Louisiana in December 2014. Since then, both sides have been working toward selecting a few key cases to go to trial first, to gauge how juries may respond to the evidence.

The number of cases pending in this litigation has now risen to more than 6,400, all under the guidance of U.S. District Judge Eldon Fallon. Plaintiffs claim the manufacturers—Janssen Pharmaceuticals, parent company Johnson & Johnson, and Bayer AG—failed to provide adequate safety warnings about the bleeding risks associated with the drug.

In a recent Case Management Order entered on August 1, 2016, Judge Fallen outlined the process for selecting the four final bellwether trial cases, which are expected to begin in February 2017.

Court Outlines Process for Choosing Xarelto Bellwether Trials

The parties recently met and conferred to try to come to an agreement on which cases should be chosen from the discovery pool to proceed to trial, but no agreement was reached. So the Court considered the arguments of both sides and came up with a 5-step process to finalize the selection of the bellwether trials.

First, the Court determined that the first case will be one in which the plaintiff had non-valvular atrial fibrillation, took Xarelto to reduce the risk of stroke and blood clots, and then suffered gastrointestinal bleeding and/or death. Both sides had to nominate three candidates for this category by August 8^th. Each side will be able to strike one case from the list, and then the rest of the cases will be submitted to the Court.  The select the first case to go to trial will then be selected randomly from the remaining cases.

The second case will be one with a similar type of plaintiff—one who had non-valvular atrial fibrillation and took Xarelto to reduce the risk of blood clots and stroke. This time, however, the plaintiff must have alleged a brain hemorrhagic stroke and/or death due to brain hemorrhage. Both sides will be allowed to remove one case from the pool, and the court will randomly choose the final one for the second bellwether trial.

The third case will be one in which the plaintiff took Xarelto to treat and/or prevent deep vein thrombosis (DVT) or pulmonary embolism (PE), and then allegedly suffered a gastrointestinal bleed and/or death. There are only two cases in the current discovery pool that meet these criteria. Both sides can argue for the removal of one, and if more than one remain, the Court will randomly select the third trial case.

Finally, the fourth case will be one in which the plaintiff meets criteria similar to the first two, but that originally filed the case in the state of Texas. There are only two cases in this pool, as well, so the parties will be allowed to argue for the removal of one, and the Court will make the final decision.

Court Issues Update on State of Xarelto Litigation

The Case Management Order also outlined the deposition deadlines for the initial bellwether discovery pool, and extended the final deadlines as follows:

• August 8, 2016, for plaintiffs, prescribing and treating doctors
• September 23, 2016, for the detail representative for each of the four bellwether trial cases

On August 2, 2016, a joint report of the plaintiffs’ and defendants’ counsel was submitted, which outlined the state of the litigation, including pre-trial orders, case management orders, bellwether selections, plaintiff and defendant fact sheets, preservation orders, discovery, and state/federal coordination of all Xarelto lawsuits.

The next status conference is scheduled for September 20, 2016.