Now that the Philadelphia Xarelto mass tort is inching closer to trying its first bellwether case, the makers of the blood-thinning drug Xarelto are looking to find out how the plaintiffs are funding their lawsuits.
Bayer and Janssen Pharmaceuticals filed a motion in the first week of April asking the Philadelphia Court of Common Pleas to compel discovery related to third-party funding of litigation. This would allow the makers of Xarelto to find out the identity of any third parties financing the plaintiffs’ pursuit of lawsuits.
The roughly 1,200 mass tort cases in Philadelphia’s Complex Litigation Center were recently narrowed down to 24 cases in preparation for the first trials that will act as bellwether cases. The outcome of the trials is designed to help the plaintiffs and defendants make decisions on pending cases rather than trying all 1,200 cases.
The parties must begin deciding which of the 24 cases to try first, and attorneys for the defendants say knowing any third parties involved could help in the decision.
“The information will determine the real party in interest and will identify any nonparties that may ask to be consulted when decisions are made in this litigation, or that may have actual control over decisions that are made in this litigation—all of which affect bellwether assessment,” a memo supporting the motion said, according to The Legal Intelligencer. “Before selecting the bellwether trial cases, defendants are entitled to know who is in control and who has a right to be consulted in each of the core discovery pool cases.”
Xarelto, also known by its generic name rivaroxaban, was approved by the U.S. Food and Drug Administration in 2011 as an anticoagulant that was safer and less restricting to the diet than the existing medication called warfarin.
However, the makers of Xarelto did not release a reversing agent to stop bleeding and some people suffered from hemorrhages and other uncontrollable bleeding events. Xarelto has been linked to several deaths.
Xarelto Makers Defend Third-Party Request
According to The Legal Intelligencer, a spokesman for Bayer said that the company plans to fight the lawsuits and is entitled to the third-party information.
“Third-party funding of litigation is increasing in civil litigation generally, and disclosure of any such interests is necessary to determine whether there are other parties besides plaintiffs who have rights to be consulted or control decisions in the litigation,” spokesman Chris Loder said.
A spokesman for Janssen Pharmaceuticals also stated its plan to defend itself in court.
“We filed this motion in order to understand, in the context of bellwether selection and in the interest of an efficient and orderly process, the entities or individuals that have a direct stake in the outcome of a case,” spokesman William Foster said to The Legal Intelligencer.
Third-Party Funding Request Part of Growing Trend
While representatives of plaintiffs are arguing against the request, it is part of a growing trend of defendants asking about how third parties are involved in lawsuits.
Johnson & Johnson, the parent company of Janssen Pharmaceuticals, made a similar request in November 2016 during litigation involving its talcum powder products. The pharmaceutical giant asked the federal judge to ask potential lead attorneys for plaintiffs to disclose any third-party backers.
According to The National Law Journal, Johnson & Johnson attorney Susan Sharko said her client was “troubled by the prospect of third-party litigation finance playing a role in this MDL proceeding.” She also wrote “unnamed investors” could “exert control or influence over plaintiffs’ conduct in this litigation.”
Even though the request is not unprecedented, Xarelto plaintiff representative Daniel Gallucci of NastLaw said the request is overly broad and unnecessary, according to The Legal Intelligencer.
“The defendants haven’t been able to identify any issues or problems related to third-party funding, and their request is overbroad, reaching into attorney-client privilege,” Gallucci said.
Other Xarelto Cases Going to Trial This Month
Xarelto lawsuits have been filed around the country and the first trials related to the blood-thinning medication are heading to trial in the coming weeks.
Many Xarelto lawsuits pending in federal courts across the country were consolidated by the U.S. Judicial Panel on Multidistrict Litigation in late 2014. After several postponements, the first of four bellwether trials for the Xarelto multidistrict litigation will take place this month with the other cases taking place in subsequent months.