As parties gear up for the first bellwether trials to start soon in state court over the blood thinner Xarelto, disputes have arisen over whether punitive damages should be allowed into the cases, and what experts should be allowed to testify.
On Sept. 8, pharmaceutical giant Bayer asked the Philadelphia Court of Common Pleas to dismiss punitive damages from two cases—one of which is set to go before a jury in November. The same day liaison counsel for the plaintiffs filed two motions seeking to bar defense experts from testifying that attorney advertising can lead to an increase in bleeding incidents, or that bleeding incidents can be beneficial, as they can lead to early diagnoses of conditions like cancer that are typically not easily detectable.
The recent motions come less than a month after a jury handed up the third straight loss for plaintiffs in the consolidated litigation over Xarelto that is pending in federal court. More than 18,000 cases are pending in federal court over Xarelto.
The federal court, like the cases pending in state court, focus on allegations that the blood thinner led to uncontrollable bleeding.
Court records indicate there are about 1,500 cases pending in state court in Philadelphia over Xarelto. The first state court action is set to hit trial in early November, with two more trials following soon after.
Bayer’s summary judgment motion regarding punitive damages, filed by Eckert Seamans Cherin and Mellott attorney Albert Bixler, asked the court to apply either New Jersey or German law to the cases, contending that the allegedly tortious conduct occurred in those venues.
“When each jurisdiction’s contacts are weighed in accordance with Pennsylvania choice-of-law, as in Risperdal, it is clear that either New Jersey or German law has the most significant relationship to (and thus greatest interest in) plaintiffs’ demand for punitive damages against the Bayer defendants,” the motion said. “Because both German and New Jersey law categorically bar punitive damages in prescription-drug cases, the court can and should dismiss plaintiffs’ punitive-damages demands against the Bayer defendants in both cases as a matter of law.”
The motion made numerous references to the Risperdal mass tort, which is also pending in Philadelphia. The judge overseeing that mass tort determined New Jersey law applied and barred the plaintiffs from seeking punitive damages.
In regard to the defense experts in Xarelto, liaison counsel for the plaintiffs filed motions seeking to bar four experts from testifying for Janssen, which is another defendant in the mass tort program.
According to the two motions filed by Levin Sedran & Berman attorney Michael Weinkowitz, one of the proposed witnesses, Dr. James Reiffel, has opined that attorney advertising has led patients to avoid anticoagulation treatment and suffer more hospitalizations and injuries. The plaintiffs’ motion, which, if granted, would be applied across the entire mass tort program, contended that Reiffel’s opinion lacked any scientific support, and was irrelevant because none of the plaintiffs refused anticoagulation treatment, or prematurely stopped taking Xarelto as a result of attorney advertising.
The second motion the plaintiffs filed asked the court to bar three doctors from testifying that anticoagulant-related bleeds can lead to early detection of some underlying conditions. The motion raised similar arguments that the testimony was irrelevant, and could not pass muster under the test outlined in Frye v. United States.
“The praise by these three experts of anticoagulant-related bleeding events as a beneficial source for the early detection of underlying pathologies in not admissible, not only because it is unreliable, as addressed in the section above, but also because none of the bellwether plaintiffs had an underlying pathology that was detected and treated early as a result of their bleeding event,” the motion said.
Janssen is being represented by Drinker Biddle & Reath attorney David Abernethy.
Janssen spokeswoman Sarah Freeman said in an emailed statement, “We are moving forward with preparing for trial and will continue to defend against the allegations in this litigation as they contradict years of scientific data, the FDA’s repeated confirmation of Xarelto’s safety and efficacy, and how the medicine should be used as described in its prescribing information.”
Weinkowitz said in an emailed statement, “Plaintiffs look forward to litigating this issue.”
Bixler did not return a call for comment.