Plaintiffs suing over the blood-thinner Xarelto are manipulating the pool of cases set for trial and crowding the docket with claims that should not have been filed, two drug companies have claimed as part of their effort to revamp how the next wave of Xarelto cases should be selected for trial in Philadelphia.
The plaintiffs shot back with a claim that defendants have made misleading statements to the court in hopes of steering the judge to adopt an unfair selection process.
Earlier this week, Bayer and Johnson & Johnson subsidiary Janssen Pharmaceuticals filed a motion outlining the process they want the court to use in selecting cases that will be tried in 2019. Their filing contends that the plaintiffs have been routinely dismissing cases from the trial pool so those that are more favorable to the plaintiffs—rather than cases that are representative of the nearly 1,800 Xarelto cases pending in Philadelphia—will go before juries.
“Plaintiffs dismissed more than half of the bellwether pool cases that were worked up (14 of the 26 cases), and dismissed 10 of the 13 defense picks in the discovery pool. There was a similar story for defendants’ trial picks: plaintiffs dismissed two of the three. They also dismissed six of the nine randomly selected discovery pool cases,” the motion, filed by Eckert Seamans Cherin & Mellott attorney Albert Bixler, said. “The goal of the bellwether process is not, and should not be, to fast-forward certain cases for trial and ignore what the majority of the docket looks like.”
At several points, the companies also accused the plaintiffs of having “parked” legally insufficient cases on the Philadelphia docket and in the federal wing of the litigation, which has been consolidated before a Louisiana federal judge.
“Plaintiffs know that these cases are not worth litigating. Those cases were filed and parked in this court simply in the hope that there would be some future payday,” the companies said in the filing.
According to the company’s filing, their proposed selection process, which calls for 200 cases to be worked up for trial, will create a more representative roster of trial-ready cases and will weed out claims that should never have been filed.
The plaintiffs responded June 6, saying the defense’s motion was “riddled with inaccurate or misleading statements,” and that their proposal will ensure fairness going forward.
“Critically important to the notion of fairness (lacking from the defendants’ proposal), is that plaintiffs proposal allows the court to, in essence, ‘split the baby’ by giving the defendants the ability to obtain discovery on the initially filed cases, which defendants can then use to support any dispositive motions they may want to file,” the response, filed by plaintiffs liaison counsel, Michael Weinkowitz of Levin Sedran & Berman, said.
The plaintiffs are proposing to select 12 cases that are representative of claims involving strokes, nonfatal gastrointestinal bleeds, and allow the defendants to strike three of those cases. The proposal also allows for depositions to be taken in 30 cases.
In 2016, Philadelphia Judge Arnold New, who supervises the court’s mass tort dockets, determined that the first wave of Xarelto trials should be chosen using a modified bellwether process. So far, two cases have been tried in Philadelphia, with one coming to a defense win and another coming to a $28 million verdict that was later reversed. The three cases that have been tried in federal court all ended in defense wins.
A Xarelto trial had been set to begin on Monday, but it was postponed until December, which makes the case Cooney v. Janssen next in line for trial. That case is set to come before a jury in August.
In an emailed statement, a spokeswoman for Bayer reiterated an argument the company made in its filing, saying that the plaintiffs were unable to bring a consistent theory of liability.
“The fact that plaintiffs continue to cast about for a theory that works is evidence that this litigation is without merit,” Carolyn Nagle said. “Importantly, in the five cases to go to trial, every prescribing physician has testified that the Xarelto label provided adequate warnings and that they would still prescribe Xarelto today.”
A spokeswoman for Janssen did not return a message seeking comment, and Weinkowitz declined to comment beyond the plaintiff’s filing.