United States District Court, E.D. Louisiana
IN RE XARELTO (RIVAROXABAN) PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Mingo
Janssen Research & Development, LLC, et al. No. 15-3469
ORDER & REASONS
E. FALLON JUDGE
the Court is Plaintiffs' Motion for New Trial Pursuant to
Rule 59. R. Doc. 7586. Defendants have responded in
opposition. R. Doc. 7841. On December 12, 2017 the Court
heard oral argument in this matter. Having reviewed the
parties' arguments and briefs and the applicable law, the
Court now issues this Order & Reasons.
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
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. The third bellwether trial
involved a resident of Mississippi: Dora Mingo. In the third
bellwether, the jury found for Defendants. Plaintiff Mingo
now brings this motion for new trial.
Mingo has moved for a new trial. R. Doc. 7586. Defendants
oppose the motion. R. Doc. 7841. Plaintiff avers that newly
discovered evidence in the form of an academic article would
have changed the outcome of the trial. R. Doc. 7586-1 at 1.
Plaintiff argues that prejudicial errors were committed
during trial in evidentiary rulings and jury instructions. R.
Doc. 7586-1 at 1. Plaintiff also alleges that material
evidence was excluded and irrelevant and unfairly prejudicial
evidence was admitted. R. Doc. 7586-1 at 1. Plaintiff claims
that each of these errors affected her rights and therefore,
Plaintiff is entitled to a new trial. R. Doc. 7586-1 at 1.
respond in opposition to Plaintiff's motion. R. Doc.
7841. First, Defendants argue that Plaintiff is not entitled
to a new trial based on the new article because the article
presents no new information and is merely cumulative. R. Doc.
7841 at 1-2. Second, Defendants argue that Plaintiff is not
entitled to a new trial based on trial discussion of whether
the FDA approved PT for use with Xarelto because Defendants
did not violate the Court's pretrial order and only
discussed relevant information regarding FDA approval. R.
Doc. 7842 at 2. Finally, Defendants argue that Plaintiff is
not entitled to a new trial based on admission of the FDA
strikethrough documents because admission of these documents
was not prejudicial error. R. Doc. 7841 at 3.
seeks a new trial pursuant to Federal Rule of Civil Procedure
59. Federal Rule of Civil Procedure 59(a)(1)(A) provides that
“[t]he court may, on motion, grant a new trial on all
or some of the issues-and to any party-as follows: after a
jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal
court.” A new trial may be granted if “the
verdict is against the weight of the evidence, the damages
awarded are excessive, the trial was unfair, or prejudicial
error was committed in its course.” Smith v.
Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.
1985) (citations omitted); see also McFadden v. Wal-Mart
Stores, No. 04-2547, 2006 WL 3087164, at *2 (E.D. La.
Oct. 27, 2006). “A district court, however, should
attempt to avoid substituting its judgment for the jury's
considered verdict, so as to not violate the parties'
Seventh Amendment rights.” Lapapa v. National
Railroad Passenger Corp., No. 04-1125, 2005 WL 3533858,
at *3 (E.D. La. Oct. 19, 2005). And to be granted a new
trial, the plaintiff must demonstrate that “manifest
injustice will result from letting the verdict stand.”
Learmonth v. Sears, Roebuck & Co., 631 F.3d 724,
731 (5th Cir. 2011). Furthermore, in order for an error to
justify a new trial, the error must not have been harmless.
Fifth Circuit has repeatedly held that “the decision to
grant or deny a motion for new trial generally is within the
sound discretion of the trial court and will not be disturbed
unless there is an abuse of that discretion or a
misapprehension of the law.” Dixon v. International
Harvester Co., 754 F.2d 573, 586 (5th Cir.1985). See
Prytania Park Hotel, Ltd. v. General Star Indemnity Co.,
179 F.3d 169, 175 (5th Cir.1999); Mitchell v. Lone Star
Ammunition, Inc., 913 F.2d 242, 252 (5th Cir.1990);
Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930
(5th Cir.1982); Evers v. Equifax, Inc., 650 F.2d
793, 796 (5th Cir.1981). Modifying or setting aside a
judgment under Rule 59 is an extraordinary remedy; motions
for new trial or to alter or amend a judgment should not be
avenues for relitigating old matters, raising new arguments,
or submitting ...