United States District Court, E.D. Louisiana
IN RE XARELTO (RIVAROXABAN) PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Dora Mingo
Janssen, et ah (Rec. Docs. 6739 & 6758)
ORDER AND REASONS
E. FALLON United States District Judge
the Court are Defendants' motions for partial summary
judgment dismissing claims for punitive damages in the third
(Mingo)and fourth (Henry) Xarelto
multidistrict litigation bellwether series. This Order and
Reasons will only address the Mingo
case. Under choice of law rules, Defendants ask
this Court to apply the laws of New Jersey or Germany to the
punitive damage claims in the upcoming trials. Plaintiff
opposes the motions, instead suggesting the application of
Mississippi law-the state where Mingo lives and was injured.
The Court held a hearing on this matter on July 21, 2017.
Having considered the parties' arguments, submissions.
and the applicable law, the Court now issues this Order and
matter arises from damages Plaintiffs claim to have suffered
from the manufacture, sale, distribution, and/or use of the
medication known as Xarelto, an anti-coagulant used for a
variety of blood-thinning medical purposes. Plaintiffs have
filed suits against Defendants throughout the nation.
Plaintiffs allege that they or their family members suffered
severe bleeding and other injuries due to Xarelto's
allegedly defective design and inadequate warning label,
among other issues.
Judicial Panel on Multidistrict Litigation determined that
the Plaintiffs' claims involved common questions of fact,
and that centralization under 28 U.S.C. § 1407 would
serve the convenience of the parties and witnesses and
promote the just and efficient conduct of the litigation.
Therefore, on December 12, 2014, the Judicial Panel on
Multidistrict Litigation consolidated the Plaintiffs'
Xarelto claims into a single multidistrict proceeding
("MDL 2592"). MDL 2592 was assigned to this Court
to coordinate discovery and other pretrial matters in the
pending cases. Subsequent Xarelto cases filed in federal
court have been transferred to this district court to become
part of MDL 2592 as "tag along" cases. The Court
has appointed committees to represent the parties, and
discovery has commenced. The Court, with assistance of
counsel, identified a discovery pool of representative cases
and selected four bellwether trials.
instant case is the third bellwether trial involving
Plaintiff Dora Mingo. Ms. Mingo, a resident of Mississippi
(see Mingo Comp. ¶ 10), filed her Complaint
directly in the Eastern District of Louisiana pursuant to PTO
9, which provides that direct-filing of a complaint in MDL
No. 2952 "will have no impact on choice of law that
otherwise would apply to an individual case had it been
originally filed in another district and transferred to this
Court pursuant to 28 U.S.C. § 1407." PTO 9, ¶
G. Because Ms. Mingo is a resident of Mississippi, PTO 9
dictates that Mississippi choice of law rules apply to
determine the substantive state law governing her claim for
Ms. Mingo's Incident
underwent a right total hip replacement surgery on January 6,
2015. On January 22, 2015, she was diagnosed with a deep vein
thrombosis ("DVT") in her right lower leg at
Southwest Mississippi Regional Medical Center. She was
admitted to the hospital under the care of Dr. Renie Jordon,
who first evaluated Ms. Mingo on the morning of January 23,
2015, and prescribed Xarelto for her DVT, which developed
while she was on Lovenox and then aspirin for anticoagulation
after she underwent hip replacement surgery. See
Def.'s Mot. (Rec. Doc. 6753) at 2. Dr. Jordon prescribed
Xarelto 15 mg twice-daily for 21 days, then 20 mg once-daily
thereafter. Prior to receiving her first dose of Xarelto on
January 23, 2015, Ms. Mingo's PT was normal at 12.5
(reference range 12.1-15.2). After receiving her first and
second dose of Xarelto, a PT test performed on January 24,
2015 revealed Ms. Mingo's PT was high at 23.6 (reference
Ms. Mingo was discharged from the hospital on January 24,
2015, she was instructed to continue taking Xarelto. On
February 12, 2015, bloodwork performed by Ms. Mingo's
primary care physician, Dr. Jennifer Gholson, showed her
hemoglobin was 5.8 (reference range: 12.0-16.0) and her
hematocrit was 19.8 (reference range: 36-48). On the morning
of February 13, 2015, Ms. Mingo had already taken her last
scheduled dose of Xarelto 15 mg, when she received a call
from Dr. Gholson's office, instructing her to go to the
emergency room immediately.
Mingo went to the emergency room at Southwest Mississippi
Regional Medical Center. Additional tests confirmed severe
anemia and an acute upper GI bleed, with a PT measurement of
26.2. Ms. Mingo was admitted to the ICU for further
treatment, and her Xarelto use was discontinued upon
same day, Ms. Mingo was transfused with four units of packed
red blood cells and two units of fresh frozen plasma. Dr.
Stephen Keith, a gastroenterologist, also performed an
esophagogastroduodenoscopy (EGD), which revealed a 6mm oozing
ulcer of the fundus. Dr. Keith ablated the bleeding ulcer
with Argon Plasma Coagulation and placed a hemoclip for
hemostasis. Ms. Mingo remained in the ICU for two more days,
until February 15, 2015.
judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Cairett, 477
U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the
record but refrains from making credibility determinations or
weighing the evidence.*' Delta & Pine Land Co. v.
Nationwide Agribusiness Lns. Co., 530 F.3d 395, 398 (5th
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of "informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact." Celotex, 477
U.S. at 322. When the moving party has met its Rule 56(c)
burden, "[t]he non-movant cannot avoid summary judgment
... by merely making 'conclusory allegations' or
'unsubstantiated assertions.'" Calbillo v.
Cavender Oldsmobile, Inc.,288 F.3d 721, 725 (5th Cir.
2002) (quoting Little, 37 F.3d at 1075). "The
mere existence of a scintilla of evidence in support of the
plaintiffs position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff." Anderson v. Liberty Lobby, Inc.,
477U.S. 242, 253 (1986). All reasonable
inferences are drawn in favor of the nonmoving party, but a
party cannot defeat summary judgment with ...