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In re Xarelto Rivaroxaban Products Liability Litigation

United States District Court, E.D. Louisiana

December 17, 2019

IN RE XARELTO RIVAROXABAN PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Catherine Robinson, No. 19-06876, Deborah Anderson, No. 19-07007, Gayle Sellers, No. 19-12205, Francis Rixford, No. 19-06961, George Malone, No. 19-06704, Andre Hawley, No. 19-06794, Thomas Kenny, No. 19-06806, Doris Rotolo, No. 19-06706, Claude Wood, No. 19-06997, Curtis Jones, No. 19-06956, Wallace La Londe, No. 19-06989, Kathleen Brodkin, No. 19-06910, Virginia Griffith, No. 19-06844, Nancy Alexander, No. 19-06822, Rafic Redwan, No. 19-06732

         SECTION L

          NORTH MAGISTRATE JUDGE

          ORDER & REASONS

          ELDON E. FALLON JUDGE

         Before the Court is Movants' Objections to Certain Terms Contained in the Proposed Private Settlement in the multi-district case involving the prescription drug Xarelto. R. Doc. 17467. Plaintiffs' Steering Committee filed a response. R. Doc. 17502. Defendants also opposed the Objections. R. Doc. 17499-1. The Court now rules as follows.

         I. BACKGROUND

         The current dispute arises out of the private settlement in the MDL case involving the medication known as Xarelto. To put this matter in perspective, a brief review of the litigation is helpful. Beginning in 2014, lawsuits were filed 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. In their suits, the Plaintiffs specifically allege that they or their family members suffered severe bleeding and other injuries due to Xarelto's allegedly inadequate warning label as well as other theories.

         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 its peak, the Court had over 30, 000 cases in the Xarelto MDL.

         In February 2015, the Court issued Pretrial Order #7 appointing members to the Plaintiffs' Steering Committee (“PSC”). R. Doc. 169. Since their appointment, the members of the PSC, their firms, and coordinated counsel have worked on behalf of the plaintiffs in this litigation. The PSC has expended considerable time and resources to develop the plaintiffs' claims, including but not limited to the following: (1) conducting no less than 83 depositions of Defendants' executives, scientists, and other employees; (2) submitting a total of 16 thoroughly prepared expert reports issued by witnesses retained on the plaintiffs' behalf; (3) engaging in extensive briefing on dispositive issues, as well as on numerous critical evidentiary matters; (4) being involved in over 3, 000 Orders entered by this Court to resolve discovery disputes, trial issues, and related matters; and (5) participating in a total of 6 bellwether trials (conducted both in the MDL and in parallel state court proceedings in Pennsylvania), each of which proceeded for approximately two weeks and involved the presentation of evidence including substantial expert witness and corporate testimony. R. Doc. 17502 at 2. The PSC has assembled a “trial package” consisting of various depositions, expert reports, trial transcripts, law memoranda, and briefs used in the development of this litigation. This material is available to any litigant who decides to not opt into the settlement program and instead proceeds to trial. R. Doc. 17502 at 2.

         After years of discovery and bellwether trials, the PSC and the Defendants entered into settlement discussions and in early 2019, reached a settlement. On March 25, 2019, the PSC and Defendants announced the Master Settlement Agreement, a private agreement that was negotiated over the course of several months and reflected compromises on both sides that were informed by years of pretrial discovery, motion practice, and trials. R. Doc. 17499-1 at 2. This is an opt-in settlement program and thus far, over 99 percent of the plaintiffs in this litigation have chosen to opt into the settlement. After the settlement was reached, fifteen new plaintiffs retained the Mike Love Firm to file claims on their behalf. These new actions were consolidated with this MDL and have the opportunity to opt into the settlement. On November 6, 2019, the Mike Love Firm, representing the moving Plaintiffs (“Movants”), contacted the PSC and Defendants' counsel to express opposition to the proposed settlement. R. Doc. 17499-1 at 2. At the November 7, 2019 Xarelto monthly status conference, the Court was advised of the Love opposition and the Court instructed Mike Love to file his opposition to the proposed settlement agreement on the record and set the objections for hearing on December 12, 2019. R. Doc. 17440. Movants filed their objections on November 19, 2019, R. Doc. 17467, and the PSC and Defendants responded to the objections on December 6, 2019, R. Docs. 17502, 17499-1. The hearing on Movants' objections was held on December 12, 2019 following the monthly status conference.

         II. PRESENT MOTION

         Movants' objections target certain terms in the proposed private settlement and seek the following relief: (1) an order striking a number of terms in the settlement agreement, including but not limited to all terms contained in section 10 of the agreement; (2) an order setting a hearing to determine if the Court should conditionally certify a settlement class; (3) an order setting a fairness hearing regarding the fairness of any revised global settlement proposal; (4) an Order striking section 3.8 of the proposed agreement; (5) an order that grants Plaintiffs additional time to consider enrollment in a court-supervised class settlement; (6) an order appointing additional counsel to serve on a second PSC for plaintiffs not enrolled in the settlement program; and (7) an order abating pending CMO deadlines applicable to non-settling plaintiffs until the second PSC is appointed. R. Doc. 17467 at 27.

         In response, the PSC opposes Movants' first request because it asks that the Court “forcibly impose and certify a class settlement on the parties in litigation, ” which the Court is not authorized to do because this litigation is a multi-district litigation and not a class action under Federal Rule of Civil Procedure 23. R. Doc. 17502 at 5. Additionally, the PSC argues that Movants do not have standing to ask the Court to either set aside or modify the proposed settlement agreement because they have not opted into the program and are not bound by the terms of the settlement agreement. R. Doc. 17502 at 5. The PSC points to the fact that if Movants do not agree with the settlement agreement, they are not prejudiced or bound by its provisions and can take full advantage of the trial package made available by the PSC and proceed to trial. R. Doc. 17502 at 7. Moreover, the PSC disputes Movants' claim that provisions of the settlement agreement are unethical, highlighting the fact that the provisions were only agreed to after consultation with separate ethics counsel and that all attorneys whose clients opt into the settlement can avail themselves of the “safe harbor” language included in the settlement agreement. R. Doc. 17502 at 9. Finally, the PSC does not see the need for a second PSC to be appointed, as only a small number of firms are declining to opt into the settlement process and all general discovery has already been completed, so only case-specific discovery may be required. R. Doc. 17502 at 10.

         Defendants Bayer Corp. et al. also oppose Movants' objections and requested relief for several reasons. R. Doc. 17499-1. First, Defendants emphasize that the Court has no authority to overturn a private settlement agreement between consenting parties and this MDL does not involve a class-action that would authorize the Court to establish a settlement class. R. Doc. 17499-1 at 3. Second, Defendants contend Movants lack standing to challenge the settlement because they have declined to participate in the proposed settlement and are not bound by its provisions. R. Doc. 17499-1 at 3. Third, Defendants assert that the proposed settlement agreement does not impact Movants' legal rights because they have access to the relevant discovery previously taken in the case and can use this trial package to proceed with their respective cases. R. Doc. 17499-1 at 4. Finally, Defendants do not think there is a need to appoint a new PSC because generic discovery has already been completed and all that remains is case-specific work. R. Doc. 17499-1 at 5.

         III. ...


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