Louisiana Federal Jury Finds In Favor Of Drug Companies In Second Bellwether Action Related To Drug Xarelto Brought By Family Of Patient Who Died
Sharyn Orr took the drug Xarelto (Rivaroxaban) manufactured, distributed, marketed, and sold by Janssen Research & Development, LLC f/k/a Johnson and Johnson Pharmaceutical Research and Development LLC; Janssen Ortho, LLC; Janssen Pharmaceuticals, Inc. f/k/a Janssen Pharmaceutica Inc. f/k/a Ortho-McNeil-Janssen Pharmaceuticals, Inc.; Bayer HealthCare Pharmaceuticals, Inc.; Bayer Pharma AG f/k/a Bayer Schering Pharma AG; Bayer Corporation; Bayer Healthcare, LLC; Bayer Healthcare AG; and Bayer AG (defendants). Sharyn Orr died of a stroke in May of 2015. Reportedly due to lack of information from defendants, her doctors failed to monitor her or provide blood tests to ensure that the drug did not cause bleeding. Sharyn Orr was 67 at the time of her death.
Her husband, Joseph Orr, Jr., and three children, Joseph Orr, III, Kelli Orr Walker, and Kim Orr Deagano, joined in litigation against defendants in the U.S. District Court for the Eastern District of Louisiana. The litigation was consolidated into a multi-district action on Dec. 12, 2014. On April 10, 2017, the Orr plaintiffs filed an amended complaint adding a claim for damages for pre-terminal pain and suffering. They alleged claims pursuant to the Louisiana Product Liability Act, La. R.S. 9:2800.51, et seq., and for wrongful death, negligence, strict products liability, breach of express warranty, breach of implied warranties, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, fraud and deceit, violation of the unfair trade practices and consumer protection law $ S 51:1401, et seq., loss of consortium, and redhibition. They sought damages for pain and suffering, wrongful death, lost chance of survival, medical and funeral expenses, the pain and suffering of survivors, lost earnings, and punitive damages.
The case was the second bellwether action in the litigation to be tried. It proceeded to a jury trial before Judge Eldon E. Fallon. On June 12, 2017, the jury returned a verdict in favor of defendants. The jury found that defendants did not fail to provide adequate warnings and instructions to Sharyn Orr's physicians.
During plaintiffs' examination of an expert witness, reference was made to the fact that there are tens of thousands of lawsuits filed by plaintiffs alleging injuries from use of Xarelto. Defense counsel argued that this evidence was unreasonably prejudicial in that it created an inference that Xarelto was an unreasonably dangerous medicine. To cure that alleged prejudice, the defense wanted to present evidence of lawyer advertising relating to Xarelto claims. Judge Fallon denied that request, and defense counsel filed an offer of proof relating to the lawyer advertising. Although the jury in this case, like in the first bellwether case before it, ultimately found for the defense, the issue of attorney advertising might play a part in appeals of subsequent Xarelto and other product liability cases. For that reason, we chose the defendants' offer of proof to be highlighted as the document of the week.
Plaintiffs were represented by T. Carey Wicker, J. Alex Watkins, and Vincent E. Odom of Capitelli and Wicker in New Orleans, Louisiana, as well as Albert Nicaud of Nicaud & Sunseri, LLC in Metairie, Louisiana. Defendants were represented by Susan M. Sharko of Drinker, Biddle & Reath in Florham Park, New Jersey; James B. Irwin of Irwin Fritchie Urquhart & Moore, LLC in New Orleans, Louisiana; and Steven Jay Glickstein of Arnold & Porter Kaye Scholer LLP in New York, New York.
Lexis Advance Subscribers may view the complete summary, including expert witness information, here: In re: Xarelto (Rivaroxaban) Products Liability Litigation (Orr v. J&J) 2017 Jury Verdicts LEXIS 1621
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