A Louisiana man who says he suffered “a life-threatening, irreversible bleed” caused by the blood thinner has filed a products liability lawsuit against pharmaceutical giants, Janssen and Bayer.
Wilburn D. of Vernon Parrish, Louisiana, who was prescribed (rivaroxaban) in February 2015 to treat atrial fibrillation, joins some 16,000 other plaintiffs in a federal multi-district litigation, established in the Eastern District of Louisiana, to more effectively manage the large number of lawsuits.
Wilburn and the other plaintiffs blame the relatively new anticoagulant for internal bleeding episodes. is marketed as an alternative to Coumadin (warfarin), which has been on the market since 1954. Unlike the maintenance free , Coumadin requires patients to adhere to dietary restrictions and regularly have their blood monitored.
Bellwether Trials
Forty of the approximately 16,000 pending lawsuits were selected for bellwether trials—test cases in lawsuits with numerous plaintiffs asserting similar claims—but just two have taken place.
Though the first two bellwether trials resulted in victories for the defendants, the remaining 38 will go forward as scheduled unless the drug makers opt to settle.
Following the first bellwether verdict in May 2017, mass tort consultant John Ray cautioned plaintiffs’ counsel in the thousands of remaining cases not to panic. He even accurately predicted the loss of the second bellwether case, which came about a month later.
It’s far too early to prognosticate, Ray wrote in Mass Tort Nexus, a website for lawyers who represent mass tort plaintiffs.
“The defense will win some, the plaintiffs will win some and in the final analysis, these wins and losses will not be the primary factor in the defendant’s decision to settle the case,” he said.
According to Ray, the prescribing physicians in both of the bellwether trials “testified as if someone had given them a script entitled ‘How a prescribing physician should testify to support a learned intermediary doctrine defense.’”
The learned intermediary doctrine defense states that a manufacturer of a product has fulfilled his duty of care when he provides all of the necessary information to a “learned intermediary” who then interacts with the consumer of a product.
And according to Ray, it’s “considered by many to be a defense of last resort.”
Under the learned intermediary doctrine defense, according to Ray, the entire case relies on the testimony of an individual prescribing physician, who must testify “very specifically” … that the doctor was aware of all the risks associated with the drug and continued to believe that the benefits outweighed the risks with regard to the individual plaintiff (patient)” and/or “that any risk not known at the time the doctor prescribed the drug, if known, would not have changed her decision with regard to prescribing the drug for the individual plaintiff patient.”
Ray assures lawyers and plaintiffs in the remaining bellwether cases that they “can safely assume” that the prescribing physicians in those lawsuits “will not all testify in a manner supporting a learned intermediary doctrine defense.”
And the chances of the thousands of prescribing physicians in the rest of the vast pool of pending cases “are not bloody likely” to “fiddle to the music of the learned intermediary defense.”
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