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About a year ago, the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated all federal Xarelto lawsuits into one court in the Eastern District of Louisiana. Since then, parties have been involved in pre-trial proceedings, including discovery and selection of potential bellwether cases for trials.

Just how those cases will be chosen, however, is now under dispute. Judge Eldon Fallon, who is overseeing the proceedings, has directed both parties to propose a plan for selecting the 40 bellwether cases that will then be prepared for potential early trial dates. Each party is to choose 10 cases, and the other 20 will then be selected randomly from those remaining.

The parties submitted motions outlining how the selection should proceed, but each side wants something different, which means that the court will have to decide on how selection will proceed.

Plaintiffs and Defendants Disagree on How to Select the Discovery Pool

At the center of the issue is whether geographical limitations should factor in the case selection. Judge Fallon has ordered that the first two bellwether trials take place in Louisiana, where the MDL is being held, but that the next one should take place in Mississippi, and the next in Texas.

On September 17, 2015, the court specified that of the 40 cases planned for the discovery pool, 20 should be selected from the Eastern District of Louisiana, 6 from Mississippi, 2 from Texas, and 12 from other states.

The defendants filed a motion on November 4, 2015, stating they agree with this order and that the court should adhere to this decision. Plaintiffs seek reconsideration, because the geographical restrictions will “seriously impair the ability to identify representative cases.” They state that if the selection proceeds as ordered, the court will reduce the pool of potential bellwether plaintiffs by as much as 85 percent.

Plaintiffs Suggest Getting Rid of Geographic Restrictions

The plaintiffs go on to state that there are currently over 2,800 cases proceeding in the MDL. Of these, only a total of 331, or 15.7 percent, are from the Eastern District of Louisiana, the state of Mississippi, and the state of Texas. Excluding the rest of the cases from consideration “places the entire bellwether plan at risk” the plaintiffs assert.

They add that thousands of plaintiffs from every state in the country have either directly filed their cases into the MDL, or transferred to the MDL, and that the bellwether trials “must be open to representative plaintiffs from all venues.” Restricting them as noted would accommodate the defendants, they say, “stacking the discovery pool deck with plaintiffs within the Fifth Circuit.”

Instead, the plaintiffs propose that the case selection proceed without any geographic limitations, save that at least two plaintiff cases are from the Eastern District of Louisiana, and that counsel input be allowed even on the “random selection” of cases. “Without some definition of ‘random’ based on input from the parties,” they state in their November 4, 2015 motion, “random selection will be haphazard.”

Plaintiffs Propose Breaking Up Cases into Categories

After getting rid of most geographical restrictions, plaintiffs suggest all MDL cases be broken up into categories, after which the parties will apply a previously approved methodology for selecting cases. The plaintiffs further propose that the categories be divided up by the nature of the plaintiffs’ injuries, such as whether or not they died because of alleged Xarelto-inspired health issues, or were hospitalized, and for how many days they were hospitalized.

Once the categories are set, the plaintiffs propose that five cases from each of the six categories be randomly selected, and then each side would be allowed to select 10 plaintiffs from that pool of 30. Such a process, they assert, would limit any party’s ability to “game the system.”

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