The first Xarelto bellwether trial in Philadelphia took a turn into political themes during closing arguments Friday, with attorneys making references to so-called “fake news,” rising xenophobia, and even quoting Michelle Obama.
Closing arguments began at about 9:30 a.m. in a packed courtroom before Philadelphia Court of Common Pleas Judge Michael Erdos. However, politics intruded early, with the plaintiff’s attorney, Gary Douglas of Douglas and London, beginning his arguments with a discussion of how false information is being increasingly disseminated.
“We live in a world today where it’s getting harder every day to tell that which is fact from that which is fake. It’s getting harder and harder to keep all that straight, and it happened right here in this courtroom,” he said. “Bayer comes from a world where fact is fake and fake is fact.”
Douglas then turned the jury’s attention to the part in the Xarelto label where it says the drug can cause bleeding, and said the language clearly refuted the defendants’ arguments that Xarelto alone cannot do so.
“It says Xarelto can cause bleeding in all their labels. This is fact. They can tweet it, they can say it as loud as they want that it’s not true, but that’s what it says,” Douglas said.
When defense counsel Beth Wilkinson of Wilkinson Walsh + Eskovitz began her argument, she took umbrage at repeated comments by the plaintiff’s lawyers about Bayer, which is a German company, selling its products to Americans.
She specifically called the jury’s attention to Douglas’ request that the 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.
“He wanted you to think, the Germans. World War II. Those people over there. Against us. He wanted to appeal to your supposed baser instincts,” she said, calling the language “insulting, especially in today’s climate.”
Wilkinson said she knew corporate America is not very popular today, but she said the jury needed to focus on the adequacy of the plaintiff’s case.
“When they go low, we go high,” Wilkinson said, quoting the former first lady, who made the statement during the contentious 2016 presidential election.
The case centers on whether the makers of Xarelto—Janssen Pharmaceuticals and Bayer—negligently failed to warn about the drug’s risk of elevating bleeding, especially for patients also taking aspirin.
Douglas’ arguments mainly centered on refuting the defense’s claim that Xarelto did not cause the severe bleeding that plaintiff Lynn Hartman sustained.
Toward the end of his time he spoke about Hartman’s prescribing doctor, who previously testified that she stood by her decision to prescribe Hartman Xarelto and that she continues to prescribe Xarelto to patients—both of which may harm the plaintiff’s argument that the doctor would have prescribed a different drug to Hartman had she been properly informed about the risks of Xarelto.
According to Douglas, the questions were misleading since, when she prescribed the medication the label was inadequate, and the label has been updated since to more adequately describe the risks. He further noted that Hartman’s doctor said she always makes sure her patients agree to taking the medication before she prescribes anything, and that Hartman has said she would have told her doctor she did not want to take the drug had she known about the risks.
Wilkinson, however, countered that the treating doctor knew the risks, and there was no duty to inform Hartman directly about the risks under the learned intermediary doctrine.
“She had a good doctor, who she trusted and she doesn’t second-guess, and her doctor said she would prescribe it again and she still prescribes it,” Wilkinson said.
Jury deliberations were expected to begin Monday.