The judge overseeing the Xarelto mass tort in Philadelphia is considering a flurry of motions and responses that are expected to shape the state court litigation as it is gearing up for next month’s bellwether trial.
Philadelphia Court of Common Pleas Judge Arnold New has been assigned a series of summary judgment motions on several issues, from whether punitive damages should be allowed into the case, to whether the plaintiffs claims are pre-empted by federal law. Several motions disputing which experts should be allowed to testify about what topics are pending in the court as well.
The first bellwether case, Hartman v. Bayer, which is set to hit trial Nov. 6, and a central issue in that case is whether the court should allow punitive damages.
Last month, Bayer Corp., which along with Janssen Pharmaceuticals Inc., is a leading defendant in the litigation, said the court should apply either New Jersey or German law to the case, which would mean the plaintiff, Lynn Hartman, would not be able to seek punitive damages.
However, in a response filed Oct. 2 by Levin Sedran & Berman attorney Michael Weinkowitz, counsel for Hartman said Indiana law applies to the case, given that Hartman is a Hoosier State resident. Likening the situation to creating “a Frankenstein monster,” the motion said Indiana law does not allow parties to apply laws from different states to different aspects of the litigation. The motion also noted that the Pennsylvania Superior Court is currently reviewing the same punitive damages issue in a case stemming from the Risperdal mass tort program, which is also pending in Philadelphia.
If “punitive damages are stricken, and the Superior Court then reverses in Risperdal (a plausible possibility), then the parties potentially would need to conduct a new trial,” the reply said. “On the other hand, there would be virtually no impact if defendants’ motion is denied.”
Other recent filings from the plaintiffs specifically dealing with which experts should be allowed to testify at trial also made reference to Risperdal, as well as the pelvic mesh mass tort. Both mass torts have active dockets in Philadelphia’s Complex Litigation Center.
The defendants are trying to block former U.S. Food and Drug Administration Commissioner David Kessler and Dr. Suzanne Parisian from testifying at trial. Kessler has been a key witness for the plaintiffs in the Risperdal mass tort, and Parisian has testified for plaintiffs in the pelvic mesh mass tort.
However, according to the plaintiffs’ latest filings in the Xarelto litigation, the court rejected similar attempts to have Kessler and Parisian blocked from testifying in the other mass tort programs.
“Defendants cannot claim with any seriousness that they lacked knowledge of this court’s ruling in Risperdal. Not only is it published on Westlaw but Janssen is a defendant in both the Xarelto and Risperdal mass torts and is being defended by the same firm in both litigations: Drinker Biddle & Reath, LLP,” the plaintiffs said in a footnote in the reply.
Although the plaintiffs made numerous filings in early October, the defendants are keeping the court busy with filings of their own.
Last month, the plaintiffs filed a motion seeking to bar experts from testifying that attorney advertising about the dangers of the drug can cause an increase in injuries. In response, Janssen argued that, since the plaintiffs are likely going to bring up issues about marketing the drug, it should be able to raise questions about advertisements for the litigation.
“Given the volume spent on attorney advertising, it is important and only fair for the jury to know that Janssen’s was not the only voice in the media,” the motion, filed Oct. 2 by Drinker Biddle & Reath attorney David Abernethy, said. “Further, the jury should hear the effect that these advertisements have on the practice of medicine.”
Weinkowitz declined to comment.
A spokesman for Bayer said the company stands behind the safety of Xarelto and will defend the cases.
“Bayer believes that certain opinions about Xarelto offered by the plaintiffs’ experts lack reasonable scientific reliability, do not meet the standards required under the applicable rules of evidence, and should be excluded from the cases,” spokesman Christopher Loder said in an emailed statement. “In addition, under Pennsylvania law, plaintiffs are not entitled to punitive damages in this case.”
Sarah Freeman, a spokeswoman for Janssen, said in an emailed statement that bleeding events have always been a known risk of the product, and that the labeling properly warned patients.
“We are preparing for trial and will continue to defend against the allegations in this litigation as they contradict years of scientific data and the FDA’s repeated confirmation of Xarelto’s safety and efficacy,” Freeman said.
Max Mitchell can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow him on Twitter @MMitchellTLI.