With the first Xarelto bellwhether
trial starting this week, several Daubert motion rulings by presiding Judge
Fallon will surely have an impact on the outcome. Judge Fallon admitted four of
the Plaintiff’s key expert witnesses in two of the upcoming bellwether trials.
Defendants Janssen and Bayer unsuccessfully
tried to block the admission of key expert witnesses. The expert witnesses
admitted to testify are Dr. Suzanne Parisian, an expert in the field of FDA
regulation; Dr. Laura Plunkett, who will testify about drug pharmacology,
general causation, regulatory matters and the adequacy of labels for both
prescription and non-prescription drugs; Dr. David Kessler, who will be
offering testimony in regards to the conduct of pharmaceutical companies; and
Dr. Nathaniel Winstead, who will be called to support the Plaintiff’s position
on the probable cause of the Plaintiff’s gastrointestinal bleed.
The Court also allowed
the Plaintiffs’ expert witnesses to express opinions regarding the bleeding risk
of Xarelto and how it would be reduced if a doctor monitored their patients.
“Because of Xarelto’s short half-life and the variability in patients, some
patients will retain more Xarelto in their system and will be subject to a
greater bleeding risk,” Judge Fallon said.
Judge Fallon also
excluded defense expert Dr. James A. Reiffel, who was going to offer the
preposterous testimony that patients might have abruptly stopped taking Xarelto
due to attorney-led advertising.
The Plaintiffs did not
win every Daubert battle, however. Ruling for the pharmaceutical giants, the
Judge said that their experts could testify about what might have happened to
the Plaintiffs if they had taken a different anticoagulant. The court also will
allow several other defense experts to testify, but did limit the extent of
their opinions.
