Bayer and Janssen Pharmaceuticals are looking to find out how plaintiffs are funding their lawsuits in the Xarelto mass tort pending in Philadelphia.
The two companies filed a motion earlier this month asking the Philadelphia Court of Common Pleas to compel discovery to reveal the identity of third-party funders to litigation surrounding uncontrollable bleeding caused by the blood-thinning drug Xarelto.
Late last year, Judge Arnold New ruled that the mass tort should be handled using the bellwether selection system. From the roughly 1,200 mass tort cases on the Philadelphia docket, the number has been pared down to 24.
The parties have begun working to determine which of the cases should be tried first and attorneys say that the information about third-party funding could help make that decision.
“The information will determine the real party in interest and will identify any nonparties that may ask to be consulted when decisions are made in this litigation, or that may have actual control over decisions that are made in this litigation—all of which affect bellwether assessment,” a memo supporting the motion said, according to The Legal Intelligencer. “Before selecting the bellwether trial cases, defendants are entitled to know who is in control and who has a right to be consulted in each of the core discovery pool cases.”
A spokesman for Bayer also told The Legal Intelligencer that the third-party funding information could be helpful to the litigation.
“Third-party funding of litigation is increasing in civil litigation generally, and disclosure of any such interests is necessary to determine whether there are other parties besides plaintiffs who have rights to be consulted or control decisions in the litigation,” spokesman Chris Loder said.
A Janssen Pharmaceuticals spokesman emailed a similar statement.
“We filed this motion in order to understand, in the context of bellwether selection and in the interest of an efficient and orderly process, the entities or individuals that have a direct stake in the outcome of a case,” spokesman William Foster said.
Funding Request Represents a New Trend
The request from attorneys is part of a new trend of defendants asking plaintiffs to reveal funding sources. In November 2016, Johnson & Johnson, the parent company of Janssen Pharmaceuticals, asked a federal judge to disclose whether any third parties had a monetary interest in the outcome of cases involving talcum powder.
At the time, Johnson & Johnson attorney Susan Sharko said in a request that unnamed investors could “exert control or influence over plaintiffs’ conduct in this litigation.”
Judges in the Northern District Court of California also proposed a rule change in October 2016 that would require attorneys to disclose when a case is backed by a third-party investor.
Lisa Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform, argued for more transparency in third-party financing to The National Law Journal last year.
“It is essential for the courts in the talc cases as well as other litigation to know whether outside investors or hedge funds may be influencing or controlling the plaintiffs’ case and how they may benefit from it,” Rickard said. “It’s also become apparent that funded cases are often poorly investigated and should receive special scrutiny from the courts.”
However, Daniel Gallucci of NastLaw, who is representing the plaintiffs in the Xarelto case, says the request from Bayer and Janssen Pharmaceuticals is overly broad.
“The defendants haven’t been able to identify any issues or problems related to third-party funding, and their request is overboard, reaching into attorney-client privilege,” Gallucci said.
Xarelto MDL Trials Also Moving Forward
Lawsuits have been surrounding Xarelto for years, and although the mass tort in Philadelphia is considered important, other bellwether trials for the multidistrict litigation in the Southwest are set to take place much sooner.
The trials were originally set to begin in February but the sudden move of the NBA All-Star Game to New Orleans from Charlotte in response to the controversial bathroom bill of North Carolina led to the trials being rescheduled for March 13. The trials were delayed a third time at the request of both parties.
The first trial is scheduled to take place in late April in the Eastern District of Louisiana with the three other bellwether trials following in consecutive months.