NICHOLSON v. JANSSEN RESEARCH & DEVELOPMENT LLC et al

Filing 32

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2592) Transferring 20 action(s) to Judge Judge Eldon E. Fallon in the E.D. Louisiana.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULT IDISTRICT LITIGATION, on 12/12/2014. Associated Cases: MDL No. 2592, FLN/5:14-cv-00173, FLS/0:14-cv-61448, ILS/3:14-cv-00987, ILS/3:14-cv-00988, ILS/3:14-cv-00989, ILS/3:14-cv-01026, ILS/3:14-cv-01040, ILS/3:14-cv-01042, ILS/3:14-cv-01050, ILS/3:14-cv-01073, KYE/0:14-cv-00146, KYW/3:14-cv-00579, LAE/2:14-cv-02258, NYE/1:14-cv-04524, NYE/1:14-cv-04841, NYE/1:14-cv-05133, NYE/1:14-cv-05728, NYE/1:14-cv-05871, UT/2:14-cv-00599, VT/2:14-cv-00159, WVS/5:14-cv-25893 (TL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: XARELTO (RIVAROXABAN)
PRODUCTS LIABILITY LITIGATION

MDL No. 2592

TRANSFER ORDER

Before the Panel:* Plaintiffs in six actions in the Southern District of Illinois move under 28
U.S.C. § 1407 to centralize this litigation in that district. This litigation currently consists of 21
actions pending in ten districts, as listed on Schedule A.1
All responding plaintiffs support centralization, but they disagree about the appropriate
transferee district. A majority of plaintiffs support selection of the Southern District of Illinois.
Certain other plaintiffs suggest the Northern District of Alabama, the District of Colorado, the
Southern District of Florida, the Northern District of Georgia, the Northern District of Illinois, the
Eastern District of Louisiana, and the Eastern District of New York. The defendants oppose
centralization and, in the alternative, propose the District of New Jersey as the transferee district.2
In opposing centralization, defendants argue principally that (1) individualized facts
concerning each plaintiff’s case, such as medical history, dosage, and alleged injuries, will
predominate over common factual issues; (2) informal coordination will be sufficient to address
overlapping discovery on the common issues alleged; (3) the circumstances of attorney advertising
suggest the cases lack merit; and (4) creation of an MDL will encourage the filing of a flood of
copycat complaints without due diligence by counsel.
While we agree that these actions present a number of individualized factual issues, the
existence of such issues does not negate the common ones. These common issues include, in
particular, the adequacy of Xarelto’s warning label with respect to the risk of severe bleeding and
*

Judge Charles R. Breyer took no part in the decision of this matter.

1

The Panel has been notified of over thirty potentially related actions in eleven other districts.
These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7.1 and
7.2.
2

Bayer Corporation, Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals Inc.
(collectively, Bayer); Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, and
Janssen Ortho LLC; and Johnson & Johnson (collectively, Janssen). Defendants also include three
German-based Bayer entities – Bayer HealthCare AG, Bayer Pharma AG, and Bayer AG – which
Bayer represents have not been served and thus have not appeared.

-2other injuries, the results of certain clinical studies, and the alleged need for blood monitoring.
Almost all personal injury litigation involves questions of causation that are plaintiff-specific. Those
differences are not an impediment to centralization where common questions of fact predominate.
See, e.g., In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717 F. Supp. 2d 1376, 1378
(J.P.M.L.2010). Indeed, we centralized litigation involving an anticoagulant in the same class of
drugs, which involved similar common factual questions and alleged injuries in In re: Pradaxa
(Dabigatran Etexilate) Prods. Liab. Litig., 883 F. Supp. 2d 1355 (J.P.M.L 2012).
Defendants ultimately acknowledge that the cases present some common factual issues,
arguing that the record will show that Xarelto is not unreasonably dangerous and that the label’s
warnings and instructions to prescribing physicians adequately warned of the alleged risks. They
nevertheless contend that informal coordination is preferable to centralization given the limited
number of actions and involved counsel. In our judgment, the considerable growth in the litigation
over the past few months demonstrates that informal coordination is not practicable. The present
motion encompasses 21 constituent actions and over 30 potential tag-along actions, which are
pending in a total of 22 districts. There are over two dozen involved plaintiffs’ firms and discovery
located in a foreign country, which will make effective informal coordination of discovery and other
pretrial matters unlikely. See In re: Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods.
Liab. Litig. (No. II), 997 F. Supp. 2d 1354, 1356 (J.P.M.L. 2014) (“the increased presence of
apparently unique counsel, coupled with the increased number of involved actions, districts, and
judges, makes it highly difficult, if not impossible, to coordinate this litigation effectively on an
informal basis”).
Defendants also ask the Panel to consider the record on attorney advertising and the product’s
regulatory history, which allegedly suggest that the litigation lacks merit. We are not convinced that
those allegations warrant a different outcome. Such an assessment of the merits of the actions is
beyond the Panel’s authority. See In re: Maxim Integrated Prods., Inc., Patent Litig., 867 F. Supp.
2d 1333, 1335 (J.P.M.L. 2012) (“‘[t]he framers of Section 1407 did not contemplate that the Panel
would decide the merits of the actions before it and neither the statute nor the implementing Rules
of the Panel are drafted to allow for such determinations’”) (quoting In re: Kauffman Mut. Fund
Actions, 337 F. Supp. 1337, 1339-40 (J.P.M.L.1972)).
Nor are we persuaded by defendants’ related argument that an MDL will generate the filing
of voluminous claims without due diligence by plaintiffs’ counsel. The Panel often has observed that
“[t]he response to such concerns more properly inheres in assigning all related actions to one judge
committed to disposing of spurious claims quickly.” See, e.g, In re: Seroquel Prods. Liab. Litig.,
447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006). Additionally, in In re: Cook Med., Inc., IVC Filters
Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 2570, — F. Supp. 3d —, 2014 WL
5318059 (J.P.M.L. Oct. 15, 2014), we explained that alleged problems like these can be managed
efficiently within the MDL:
[T]he transferee court handling several cases in an MDL likely is in a better position
– and certainly is in no worse position than courts in multiple districts handling

-3individual cases – to properly address meritless claims. There are many tools a
transferee court may use to accomplish this task. And importantly, if defendants
believe plaintiffs’ counsel are filing frivolous claims, it is incumbent upon defense
counsel to bring that concern to the attention of the transferee court, and to propose
a process to identify and resolve such claims.
See id. at *2.
On the basis of the papers filed and the hearing session held, we find that the actions listed on
Schedule A involve common questions of fact and that centralization will serve the convenience of
the parties and witnesses and promote the just and efficient conduct of this litigation. These actions
share common factual questions arising out of allegations that plaintiffs suffered severe bleeding or
other injuries as a result of taking Xarelto (rivaroxaban) and that defendants did not adequately warn
prescribing physicians or consumers of the risks associated with Xarelto, including the potential for
severe or fatal bleeding and the unavailability of a reversal agent to counteract Xarelto’s
anticoagulation effects. Issues concerning the development, manufacture, regulatory approval,
labeling, and marketing of Xarelto thus are common to all actions. Centralization will eliminate
duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties,
their counsel and the judiciary.
We are presented with a number of choices for transferee district. Weighing all relevant
factors, we select the Eastern District of Louisiana as the transferee forum. One action on the motion
and twelve potential tag-along actions are pending in this district, which has the support of a number
of plaintiffs and also is supported by the opposing defendants as an appropriate alternative. This
district provides a geographically central forum for this nationwide litigation. Judge Eldon E. Fallon,
who presides over three potential tag-along actions, is an experienced transferee judge with the
willingness and ability to manage this litigation efficiently. He is well-versed in multidistrict litigation,
and we are confident he will steer this matter on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the Eastern District of Louisiana are transferred to the Eastern District of Louisiana and, with the
consent of that court, assigned to the Honorable Eldon E. Fallon for coordinated or consolidated
pretrial proceedings with the actions pending there.
IT IS FURTHER ORDERED that MDL No. 2592 is renamed In re: Xarelto (Rivaroxaban)
Products Liability Litigation.

-4PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

Lewis A. Kaplan
R. David Proctor

IN RE: XARELTO (RIVAROXABAN)
PRODUCTS LIABILITY LITIGATION

MDL No. 2592

SCHEDULE A

Northern District of Florida
NICHOLSON v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 5:14-00173
Southern District of Florida
PACKARD v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 0:14-61448
Southern District of Illinois
LEMP, ET AL. v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-00987
HANEY v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-00988
LEACH v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-00989
RUCKER v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-01026
PENNELL, ET AL. v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-01040
MCMUNN v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-01042
BIVEN v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-01050
MULRONEY v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-01073
Eastern District of Kentucky
BOLTON, ET AL. v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 0:14-00146
Western District of Kentucky
COX v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 3:14-00579

- A2 Eastern District of Louisiana
BRASWELL v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 2:14-02258
Eastern District of New York
JEFFCOAT v. JANSSEN REASEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 1:14-04524
GRIGGS, ET AL. v. JANSSEN RESEARCH & DEVELPMENT LLC, ET AL.,
C.A. No. 1:14-04841
BOYNTON, ET AL. v. JANSSEN RESEARCH & DEVELPMENT LLC, ET AL.,
C.A. No. 1:14-05133
USELTON v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 1:14-05728
GREEN, ET AL. v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 1:14-05871
District of Utah
ARMSTRONG, ET AL. v. JANSSEN RESEARCH & DEVELOPMENT, ET AL.,
C.A. No. 2:14-00599
District of Vermont
MCGOWAN v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET AL.,
C.A. No. 2:14-00159
Southern District of West Virginia
DALRYMPLE v. JANSSEN RESEARCH & DEVELOPMENT LLC, ET. AL.,
C.A. No. 5:14-25893