The Xarelto plaintiff who had her nearly $28 million verdict reversed last month has outlined the issues she plans to raise to the Pennsylvania Superior Court as part of her effort to have the multimillion-dollar award reinstated.
Plaintiff Lynn Hartman on Monday filed a four-page brief challenging Philadelphia Court of Common Pleas Judge Michael Erdos’ ruling from last month that granted the defense’s motion for judgment notwithstanding the verdict and eliminated the $27.8 million award a jury handed up in December. The award had been the first win for plaintiffs in the Xarelto litigation after four consecutive losses in federal court.
Hartman’s appeal challenges, among other things, a statement by the judge that the defendants “deserve a new trial on account of plaintiffs’ highly inflammatory remarks during closing.”
Erdos made the statement during a Jan. 9 post-trial hearing, after defendants Bayer and Janssen contended that Hartman’s attorneys made several inappropriate references to Bayer’s past in an attempt to link the German-based company with Nazis in the minds of the jury.
Defense counsel Beth Wilkinson of Wilkinson Walsh + Eskovitz had specifically taken issue with Hartman’s attorney Gary Douglas’ request during closing arguments that jurors “swing the mighty sword of justice to let those folks know, in Berlin, Germany, when they sell their drugs to us Americans to make their billions” they need to include more adequate information in the label.
After the jury handed down its verdict, Bayer also pointed to social media posts by three members of the plaintiff’s trial team that had used the hashtag #killinnazis in apparent connection with the Hartman trial.
During the Jan. 9 hearing, Erdos said he did not think the social media posts would have any bearing on his decision to toss the verdict, but he said he would include the evidence in the official appellate record for the Superior Court.
Hartman’s Monday motion challenged Bayer’s contentions, saying “no evidence of record exists to show that the jury had any exposure before reaching its verdict to any of the material,” and the “court properly explained at the conclusion of the hearing on the post-trial motions that this court would not rely on any of the material … in deciding whether to grant a new trial based on plaintiff’s counsel’s closing argument.”
Hartman’s four-page filing was based on statements Erdos made when he ruled from the bench during the Jan. 9 post-trial hearing. During the hearing, Erdos said Hartman’s arguments to overcome the learned intermediary doctrine were speculative, and that his decision to toss the verdict stemmed from Hartman’s failure to provide sufficient evidence to prove proximate cause.
“I think it is speculative to say that based on [the PT test] she would have communicated the increased risks with respect to the other issues, particularly in light of her answers about not discussing percentages generally,” Erdos had said. “In fact she would not even concede that the tone and demeanor of the conversation would have been any different. She was never asked specifically if she would have communicated the new information to Mrs. Hartman as opposed to just generally.”
The first issue Hartman raised in her appellate brief focused on this aspect of Erdos’ ruling, saying she plans to have the Superior Court review whether that decision was an abuse of discretion.
Levin Sedran & Berman attorney Michael Weinkowitz, who is co-liaison counsel for the plaintiffs, declined to comment about the filing.
A spokeswoman for Janssen said the company agreed with Erdos’ decision to toss the verdict.
“Xarelto’s FDA-approved labeling has always warned of bleeding events—a known risk associated with anticoagulation—and appropriately informs physicians of the information that they need to make treatment decisions with their patients,” spokeswoman Sarah Freeman said in an emailed statement.
A spokesman for Bayer did not return a message seeking comment.