Photo: Shutterstock

Plaintiffs who lost all three bellwether trials over Xarelto last year have asked an appeals court to vacate the decisions, saying the judge improperly excluded evidence and gave jurors incorrect instructions.

In an opening brief filed on Monday before the U.S. Court of Appeals for the Fifth Circuit, Frederick Longer of Philadelphia’s Levin Sedran & Berman wrote that U.S. District Judge Eldon Fallon of the Eastern District of Louisiana should not have excluded evidence that would have supported the plaintiffs’ claims. Plaintiffs allege that Bayer and Johnson & Johnson’s Janssen Pharmaceuticals Inc. failed to instruct physicians that patients could get a blood test assessing their risk of bleeding when taking Xarelto, he wrote.

➤➤ Want deeper coverage of class action and mass tort litigation. Sign up here for Critical Mass by Amanda Bronstad, a new briefing from 

The Fifth Circuit’s decision in the three cases, consolidated on appeal, could affect more than 20,000 individual lawsuits coordinated in multidistrict litigation in the Eastern District of Louisiana, he wrote.

“Some issues raised in these appeals likely will be raised again in most, if not all, subsequent trials,” he wrote. “All three cases ended in defense verdicts, but those verdicts resulted from the improper admission or preclusion of certain evidence and the improper omission of essential jury instructions.”

“This consolidated appeal is based on identical issues raised by the three individual plaintiffs in post-trial motions after juries in each case found unanimously in favor of the defendants, and Judge Fallon rejected those motions in all cases,” said Bayer spokesman Christopher Loder. “There is no merit to these recycled arguments and we will be urging the court in our reply to deny this appeal.”

The press office of Janssen did not respond to a request for a comment.

Longer referred requests for a comment to Andy Birchfield of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, who wrote: “The defense verdicts in the three bellwethers hinged on court rulings that, we argue, improperly admitted or precluded important evidence from the jury. Because of these trial court rulings, jurors were not allowed to consider key evidence, including how consumers outside the U.S. receive more complete information about Xarelto’s documented health risks.”

 He added: “Thousands of viable lawsuits remain and are being worked up for eventual trial, and these same issues are certain to come up in each case. It’s important for the Fifth Circuit to resolve these issues for these three plaintiffs and all who will follow.”

Lawsuits allege that Xarelto, an anticoagulant used to treat blood clots, caused plaintiffs to suffer from uncontrollable internal bleeding. Defendants, represented by Beth Wilkinson of Washington, D.C.’s Wilkinson Walsh + Eskovitz, scored speedy defense verdicts on May 3 and June 12 in New Orleans. In the third verdict, on Aug. 18 in Jackson, Mississippi, Janssen was represented by Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver, while Bayer’s lawyers were Lyn Pruitt of Mitchell Williams in Little Rock, Arkansas, and Walter T. Johnson at Watkins & Eager in Jackson.

Lead plaintiffs attorneys in the trials were Brian Barr, a shareholder at Levin Papantonio Thomas Mitchell Rafferty Proctor in Pensacola, Florida, and Birchfield. Longer, who is on the plaintiffs steering committee of the Xarelto MDL, filed the appeal brief.

In particular, he wrote, jurors weren’t allowed to hear evidence of foreign labels and medical associations in other countries, like Canada and New Zealand, which acknowledged the effectiveness of the blood test. Jurors in the third trial also were unaware of “striking new evidence”: a study by Bayer scientists backing up use of the blood test that “probably would have changed the outcome of trial if it had been available for presentation to the jury before the evidence was closed.”

The brief also challenged the jury instructions in all three cases and Fallon’s decision in one of the trials to allow Dr. Gary Peters, a clinical senior director in Janssen’s cardiovascular department, to testify about his wife’s use of Xarelto.

In separate litigation, plaintiffs lawyers in Philadelphia plan to appeal reversal of a $28 million Xarelto verdict in the first trial in Pennsylvania state court, while a second trial opened this month.