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In re Xarelto Rivaroxaban Products Liability Litigation

United States District Court, E.D. Louisiana

September 20, 2017

IN RE XARELTO RIVAROXABAN PRODUCTS LIABILITY LITIGATION
v.
Bayer Corp., et al. No. 14-2720 THIS DOCUMENT RELATES TO: Boudreaux Orr, et al.
v.
Bayer Corp., et al. No. 15-3708

          NORTH, MAG. JUDGE.

          ORDER & REASONS

          ELDON E. FALLON, JUDGE.

         Before the Court are Plaintiffs' Motions for New Trial Pursuant to Rule 59. R. Docs. 6818, 7047. Defendants have responded in opposition. R. Docs. 7048, 7447. Having reviewed the parties' briefs and the applicable law, the Court now issues this Order & Reasons.

         I. BACKGROUND

         This 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. The Plaintiffs have filed suits in federal courts throughout the nation against Defendants, Bayer Corporation, Bayer HealthCare LLC, Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare AG, Bayer Pharma AG, and Bayer AG, Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, Janssen Ortho LLC, and Johnson & Johnson. The Plaintiffs specifically allege that they or their family members suffered severe bleeding and other injuries due to Xarelto's allegedly inadequate warning label.

         The 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 Judge Eldon E. Fallon of the United States District Court for the Eastern District of Louisiana 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; at present the Court has approximately 20, 000 cases in the Xarelto MDL. The Court appointed committees to represent the parties. The Court adopted a discovery plan and set bellwether trials to begin in April 2017. The first two trials involved Louisiana residents: Joseph Boudreaux and Sharyn Orr. These trials were conducted in New Orleans, Louisiana. In both the Boudreaux and Orr bellwether trials, the juries found for Defendants. Plaintiffs Boudreaux and Orr now bring motions for new trial.

         II. PRESENT MOTIONS

         A. Plaintiff Boudreaux's Motion for New Trial (R. Doc. 6818)

         Plaintiff has moved for a new trial. R. Doc. 6818. Defendants oppose the motion. R. Doc. 7048. Plaintiff argues that prejudicial errors were committed during trial in evidentiary rulings and jury instructions. R. Doc. 6818-1 at 1. Plaintiff alleges that material evidence was excluded, irrelevant and unfairly prejudicial evidence was admitted, and that accurate jury instructions were rejected. R. Doc. 6818-1 at 1. Plaintiff claims that each of these errors affected their rights and therefore, Plaintiff is entitled to a new trial. R. Doc. 6818-1 at 1.

         Plaintiff argues that prohibition of placing a medical article referred to as the “Lippi Article” and information regarding foreign labels was prejudicial. R. Doc. 6818-1 at 3, 7. Plaintiff also alleges that allowing evidence of personal use of Xarelto by expert's family members was prejudicial. R. Doc. 6818-1 at 14. Finally, Plaintiff argues that it was error to use a general jury instruction and that Defendant's demonstrative materials should not have gone to the jury room. R. Doc. 6818-1 at 17, 20.

         B. Defendant's Response (R. Doc. 7048)

         Defendant responds arguing that that Plaintiff's arguments are without merit, that most of them were not adequately preserved, and that there will be no “manifest injustice” resulting from the verdict. R. Doc. 7048 at 1. First, Defendant alleges that Plaintiff's claims regarding the exclusion of evidence from foreign medical associations, information from foreign Xarelto labels, and requested jury instructions were not preserved. R. Doc. 70448 at 1-3. Second, Defendant argues that the Court did not abuse its discretion by allowing Dr. Peter's testimony regarding his wife's use of Xarelto and that this testimony did not substantially affect Plaintiff's rights because Plaintiff cross-examined Dr. Peter's regarding this testimony. R. Doc. 7048 at 2. Finally, Defendant argues that it was not error for the Court to allow some exhibits to be shown to the jury during their deliberations, and that Plaintiff consented to this submission. R. Doc. 7048 at 3.

         C. Plaintiff Orr's Motion for New Trial (R. Doc. 7047)

         Plaintiffs have moved for a new trial. R. Doc. 7047. Defendants oppose the motion. R. Doc. 7447. Plaintiffs argue that prejudicial errors were committed during trial in evidentiary rulings and jury instructions. R. Doc. 7047-1 at 1. Plaintiffs allege that material evidence was excluded, irrelevant and unfairly prejudicial evidence was admitted, and that accurate jury instructions were rejected. R. Doc. 7047-1 at 1. Plaintiffs claim ...


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