As the number of Xarelto lawsuits passes the 11,000 mark and bellwether trials get underway, drugmakers Bayer and Johnson & Johnson have filed a motion in Philadelphia to compel the court to reveal information on whether or not plaintiff cases have been funded by third parties.
The motion asserts that the defendants have “the right to control or be consulted about the plaintiffs’ litigation and whether there is a third-party source of funding for the plaintiffs’ litigation,” as well as the identity of individuals or organizations involved and any written agreements to that effect.
Defense counsel states that documents will assist in finding out who is actually behind the litigation and whether or not such outside funding agreements are legal. According to the motion:
“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. 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.”
Third-party litigation funding did not originate in the U.S., but as the most litigious nation on earth, the concept has begun catching on with investors. It is defined as an agreement by which all or some portion of a plaintiffs' legal costs are paid for by an outside party in exchange for a percentage of any court award.
This is better known as “lawsuit funding,” in which a group of investors or a specialized company advance an amount of money to a plaintiff equal to part or all of an anticipated judgment. It is essentially a non-recourse loan: if plaintiffs lose their case, those providing the funding receive nothing.
A spokesperson for Bayer points out that “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.” However, counsel for the plaintiffs disagrees, saying, “The defendants haven't been able to identify any issues or problems related to third-party funding, and their request is overbroad, reaching into attorney-client privilege.”
Xarelto (rivaroxaban) was approved by the FDA in 2013 for patients at risk for embolism. It has been hailed as a simpler and more effective alternative to warfarin, having fewer interactions and requiring less patient monitoring.
However, unlike warfarin, Xarelto currently has no approved antidote in case a patient winds up with uncontrollable bleeding. Xarelto has been linked to a large number of injuries and deaths. Plaintiffs allege that Bayer and Johnson & Johnson failed to make doctors and patients aware of these risks. They also state that had they known of the problem, they would have chosen a different course of treatment.