Products Liability Law Reporter

A federal district court held that summary judgment for defendant manufacturers was warranted where a plaintiff’s lawsuit was filed almost seven years after her mother died of gastrointestinal bleeding.

Bertha Barnes suffered from multiple health issues, including pancreatic cancer, hypertension, and diabetes. In December 2012, she died of gastrointestinal bleeding at age 70. Almost seven years later, in September 2019, one of her daughters sued Janssen Pharmaceuticals, Inc., Johnson & Johnson, and Bayer HealthCare Pharmaceuticals Inc., alleging negligent failure to warn and wrongful death. The defendants removed the Colorado state court case to federal court, transferred the case to the Louisiana district court’s Xarelto MDL, and moved for summary judgment, arguing that the plaintiff’s claims were time-barred or worthy of dismissal because the plaintiff had failed to present evidence that Barnes had been prescribed Xarelto before she suffered fatal bleeding.

Granting the motion, the district court found that the plaintiff’s claims are subject to Colorado’s two-year limitations statute. Citing case law, the court said that negligence claims begin to accrue once the injury and its cause are known or should have been known by the exercise of reasonable diligence. Where a plaintiff has a suspicion of wrongdoing, the court added, he or she has a duty to uncover the relevant facts, and the limitations statute on a potential claim begins to accrue.

Here, the court found that the plaintiff’s negligence and wrongful death claims must be dismissed because they were not filed within the applicable two-year limitations period. The plaintiff’s claims began to accrue on the day that Barnes suffered her fatal bleeding event, the court said, noting that Barnes’s cause of death—as well as the warning labels on Xarelto medication bottles—should have put the plaintiff on notice that anticoagulation medication was potentially linked to her mother’s death. Because the plaintiff waited almost seven years to file her lawsuit, her claims are time-barred, the court concluded.

The court also found that notwithstanding limitations issues, the plaintiff had also failed to meet her burden of proof under the Colorado Product Liability Act of 1977. Under the statute, to prevail on a negligent failure to warn claim, the plaintiff must prove, among other things, that Barnes had used Xarelto and that the drug caused her bleeding and death. The plaintiff failed to offer any evidence that it was Xarelto, not Warfarin, that led to Barnes’s injury and death, the court found. Although vague references to Xarelto exist in Barnes’s medical records, the prescribed dosages show that the product Barnes was prescribed could not have been Xarelto but was instead Warfarin. Xarelto was not available in a 5-mg dose at the time, the court added, and the dosing regimen in Barnes’s record is inconsistent with Xarelto’s approved use. Consequently, the court concluded that summary judgment is also warranted here because the plaintiff did not establish that Barnes’s death was linked to Xarelto.

Citation: In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 2021 WL 66453 (E.D. La. Jan. 7. 2021).