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A recent order in the Xarelto MDL caught our attention because it is an example of something we see more and more:  A plaintiff in multidistrict litigation who neither accepts a settlement program worked out in the MDL nor is prepared to proceed with his or her claims once the chance to settle has passed.  So which will it be?  Take the defendants’ money or take your chances going it alone?

The plaintiff in In re Xarelto Rivaroxaban Products Liability Litigation, No. 17-5372, 2021 U.S. Dist. LEXIS 176170 (E.D. La. Sept. 15, 2021), chose his litigation strategy poorly.  The plaintiff’s decedent in that case used the defendant’s anticoagulation medicine under the direction of his cardiologist to reduce the risk of stroke and embolism.  Id. at *1.  He later stopped taking the drug seven days before a surgical procedure, again under his doctor’s orders, but sadly suffered uncontrollable bleeding during surgery and died.  Id.

At its peak, the Xarelto MDL included more than 30,000 individual cases, and more than 99 percent of them were resolved by an opt-in settlement program.  Id. at *4.  We have no information on the terms of the settlement program or how generous they were.  But, with a take rate exceeding 99 percent, we can commend both sides for coming to terms acceptable to the defendants and all but less than one percent of the plaintiffs.

The flip side, however, is that the less-than-one-percent had to prove their cases.  This plaintiff and her lawyers couldn’t do it.  They had no expert on causation.  They served one expert report, but did not provide all the materials required by the applicable case management order, and ultimately withdrew that expert.  Id. at *21.  Then, in opposing summary judgment, they submitted (late) an affidavit from the decedent’s surgeon stating that the excessive bleeding was caused by the use of the product and that if the product’s label had warned him of the risk of bleeding “he would have changed his decision on [the decedent’s] surgery.”  Id. at *6.

The affidavit, however, was a sham.  The surgeon later testified that the plaintiffs’ attorneys drafted the declaration (although he did sign it) and that he never read the product label until his deposition.  Id. at *7.  He also testified that he was unwilling to opine on whether the product could have caused the decedent’s death and that he did not know if there was any Xarelto in the decedent’s system during surgery.  Id. at *7-*8.

In other words, his sworn deposition testimony repudiated his affidavit, so the district court disregarded it:

Having reviewed [the surgeon’s] affidavit and deposition transcript, the Court finds that the affidavit is not competent summary judgment evidence.  The sham affidavit doctrine “prevents a party who has been deposed from introducing an affidavit that contradicts that person’s deposition testimony without explanation.”  Inconsistencies abound between [the surgeon’s] affidavit and his deposition testimony just three months later. . . .  In view of these unexplained inconsistencies, the Court need not consider the affidavit for summary judgment purposes.”

Id. at *19-*20 (citations omitted).  We call this the sham affidavit rule applied in reverse.  We have long understood that a party cannot raise a triable issue of fact by filing an affidavit contradicting his or her prior deposition admissions.  (See some of our prior commentary on sham affidavits here and here.)  In that event, the later affidavit is disregarded as a sham.  Here, we have the opposite.  The affidavit came first, and it was astute defense counsel and an honest live witness who completely obliterated it.  A sham flowing the other way.

That left the plaintiff again without a causation expert, so she requested leave to disclose yet a third expert.  But that expert’s report did not meet the requirements of Rule 26, and it did not proffer opinions sufficient to defeat summary judgment in any event.  The district court denied leave.  Id. at *21-*23.  And, the decedent’s other treaters could not fill the gap, as they confirmed that Xarelto would not have been in the decedent’s system a week after discontinuing use.  Id. at *17-*18.  The district court granted summary judgment on medical causation.

This ruling demonstrates the value of deposing affiants like the decedent’s surgeon here, and if that were the only takeaway from this order we would be satisfied.  However, in addition to medical causation, the district court ruled that the plaintiff’s warnings claims failed, too.  Applying Louisiana’s learned intermediary rule, the district court ruled that a drug manufacturer’s duty to warn runs to the prescribing physician and stated that “the plaintiff must show that ‘a proper warning would have changed the decision of the treating physician; but for the inadequate warning, the treating physician would not have used or prescribed the product.’”  Id. at *12-*13 (citations omitted).

The decedent’s prescribing physician “unequivocally testified” that the Xarelto label adequately warned him of the risk of bleeding and that it provided him with the information necessary to make an informed prescribing decision.  Id. at *13-*14.  He also said that Xarelto was the preferred medicine for the decedent and “I would still feel that way.”  Id. at *14.  The defendants therefore met their duty to warn.  Id. at *15.  Notably, the plaintiff’s third proposed expert purported to opine that the defendants failed adequately to warn the decedent of an increased risk, but that made no difference either because the duty to warn runs to the treating physician—the learned intermediary—not directly to the patient.  Id. at *22-*23.

The plaintiff’s design and manufacturing claims failed for lack of evidence too, but the main takeaway here is twofold.  First, if this plaintiff turned down an inventory settlement despite having failed to marshal evidence to support her case, imagine how many plaintiffs received settlement money despite being in similarly unsupported positions.  Such thoughts make us double down on our reservations about multidistrict litigation and its potential for harboring claims with no arguable merit.  Second, look out for affidavits that are too bad to be true.  They may not be.