Unbeaten at trial, Bayer and Janssen say cycle of Xarelto lawsuits 'needs to be stopped'

By John O'Brien | Jun 13, 2018

PHILADELPHIA – Plaintiffs attorneys have not landed on an argument, but that hasn’t stopped them from using Philadelphia’s mass torts court when they file hundreds of lawsuits over the blood-thinner Xarelto each month, companies fighting the claims say.

In papers filed June 5 regarding which of the more than 1,700 Xarelto cases in Philadelphia’s Complex Litigation Center will be picked for trial, attorneys for Janssen Pharmaceuticals and Bayer Corp. say plaintiffs lawyers have been searching for a theory that will stem the early tide of defense verdicts in these lawsuits.

There can be no failure to warn of excessive bleeding if Xarelto’s label mentions bleeding more than 70 times, including “serious or fatal bleeding,” they say.

“In light of the Xarelto label's clear and extensive warnings, Plaintiffs have concocted speculative, alternative theories, which have morphed in various directions from day one – and continue to change at every turn, even during the course of trial,” the companies wrote.

“Yet in the face of all of this, Plaintiffs continue to file 400-600 cases per month when they have no viable liability theory. It’s a never-ending cycle that needs to be stopped.”

So far, plaintiffs attorneys have found difficulty convincing juries and judges, too. All three verdicts in the federal multi-district litigation have gone to the defense.

But plaintiffs attorneys thought they had a signature win late last year when a Philadelphia jury awarded Lynn Hartman $28 million in the first trial there. However, Judge Michael Erdos reversed the verdict, which include $26 million in punitive damages.

Hartman and her husband are from Indiana, which is not out of the ordinary in the Philadelphia CLC. Traditionally, close to 90 percent of plaintiffs are from out of state and hoping to score the latest in the city’s series of multimillion-dollar verdicts.

Since the Hartman victory was reversed, the defendants have claimed a second victory. That plaintiff is from New Jersey.

“Because the very therapeutic properties that make anticoagulants so important to public health also can – necessarily – cause patients to bleed, every anticoagulation medication has a warning label that explicitly and unequivocally warns of the risk of bleeding,” the companies say.

“Xarelto is no different…”

Plaintiffs attorneys responded shortly after Janssen and Bayer filed their objection to a proposed case management plan, calling what the companies wrote “mistaken rhetoric.”

The plaintiffs liaison counsel – attorneys from Levin Sedran & Berman, NastLaw and Feldman & Pinto – say they are committed to bringing an end to the litigation.

“Defendants’ motion is riddled with inaccurate or misleading statements regarding the present status of the Xarelto litigation in an attempt to undermine the soundness of Plaintiffs' failure-to-warn claims,” plaintiffs attorneys wrote.

The defense says it was first accused of failing to adequately test Xarelto before releasing it and lacking a “black-box” warning about bleeding risks. Those theories haven’t been mentioned during any of the trials, it says.

Next, Janssen and Bayer say they were accused of failing to instruct doctors to conduct certain testing – a theory rejected in the three federal MDL trials.

Other theories include that the label lacks subgroup data and data on concomitant aspirin use.

“All of this shapeshifting (including during the middle of trial) has led to numerous inefficiencies, including almost monthly amendments to expert reports, calls for additional discovery that should have been completed long ago, and two amendments to the master complaint,” defendants say.

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Organizations in this Story

Bayer Pharma Feldman & Pinto, P.C. Janssen Pharmaceuticals, Inc. Levin, Fishbein, Sedran & Berman Philadelphia County Court of Common Pleas

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