Bayer AG and Johnson & Johnson subsidiary Janssen Pharmaceuticals recently suffered a $28 million loss in a Pennsylvania courtroom over injuries related to its blood thinner Xarelto. The pharmaceutical companies are appealing the ruling. That was predictable. The grounds of the appeal, however, were less so.
In a post-trial motion filed Dec. 15, attorneys for Bayer — which is based in Berlin, Germany — and Janssen argue that there was a premeditated effort on the part of the plaintiffs’ legal team to connect the pharmaceutical company with Nazis in jurors’ minds.
Bayer’s attorneys site comments related to Germany made during closing arguments and also social media posts attributed to the plaintiffs’ lawyers, describing them as “so likely to have inflamed the jury’s passions that the only appropriate remedy is to order a new trial.”
On those somewhat unusual grounds the pharmaceutical giants are requesting an appeal of the first Xarelto litigation loss, a verdict that offered hope to others claiming injuries due to the blood thinner.
Nazis & “Hyperbole”
In Bayer and Janssen’s post-trial motion, attorneys pointed to the plaintiff’s closing arguments, as well as social medial post on Instagram. They described the references to Germany during closing arguments as “highly prejudicial inflammatory, xenophobic, and unconstitutional …” and noted the use of Instagram hashtag #killinnazis by attorneys for the plaintiff.
A corresponding motion filed later in the day by the plaintiffs’ lawyers wrote off the defense’s concerns as “hyperbole.”
On Dec. 18, the pharmaceutical companies’ legal team detailed the social media posts that concerned them in another motion. The motion cited multiple uses of the #killinnazis hashtag by users it identified as lawyers for the plaintiff. It listed Instagram accounts “nedmcwilliams,” “de_bess0725” and “thegarydouglasband.” The accounts, the motion contended, were linked with Ned McWilliams, of Levin Papantonio Thomas Mitchell Rafferty Proctor; Anne E. DeVaugh, of Herman Herman & Katz; and Gary Douglas, of Douglas and London, respectively.
The defense’s motion said the “new evidence” raised issues about the plaintiff’s counsel’s “calculated litigation strategy, candor and credibility, and fundamental fairness.”
In response to these charges, the motion filed by the plaintiff’s team described the defense’s effort as “nothing more than a desperate attempt to create an appellate issue, to harass and intimidate, and to attempt to color the court’s view of plaintiff’s counsel prior to the filing of defendants’ post-trial motions.” It also argued that jurors were likely not exposed to social media posts by the attorneys, and noted that McWilliams had used the #killinnazis hashtag since 2013 and that it was based on the 2009 film “Inglourious Basterds.”
The plaintiffs’ motion also raised First Amendment, freedom-of-speech concerns about the defense treading into such waters in the first place, arguing that involving attorneys’ social media use could have “a chilling effect on the personal lives of lawyers.”
“It is clear that the present motion masquerades as a substantive post-trial motion, but is nothing more than a half-hearted attempt to personally attack plaintiff counsel and inflame the court,” the motion argued in response to the request for an appeal.
Nazi-Appeal Targets First Win for Xarelto Plaintiffs
Indiana resident Lynn Hartman wasn’t the first woman to claim injuries from her use of the blood thinner Xarelto. But she was the first one to realize victory in a court room.
Prior to Hartman’s win in early December, Bayer AG and Johnson & Johnson had a trio of litigation wins — with federal juries in Louisiana and Mississippi — when it came to Xarelto claims. But then a state-court jury in Pennsylvania found the pharmaceutical giants responsible for the plaintiff’s injuries, which included gastrointestinal bleeding.
During the trial, the plaintiff’s legal team argued that the pharmaceutical companies failed to adequately warn patients about the risks of internal bleeding, citing insufficient warning labels. They also contended that clinical trials had been manipulated in order to make bleeding risks appear lower.
The Philadelphia jury agreed, awarding Hartman $27.8 million. The win was viewed as a good sign for the nearly 2,000 Xarelto claims currently consolidated in a mass tort program in Philadelphia, as well as possibly the more than 20,000 awaiting nationwide.
The verdict came at the end of a year that saw a 27 percent increase in Xarelto-related claims, according to a recent Johnson & Johnson SEC filing. At the same time, however, profits from the blood thinner are also on the rise.
Xarelto was Bayer’s top seller in 2016, netting the company $3.2 billion. The drug was Johnson & Johnson’s number three, making the company a whopping $2.3 billion.
Xarelto was approved by the U.S. Food and Drug Administration in 2011, and has since been marketed as an alternative to more traditional blood thinners, such as Warfarin. The agency now links Xarelto to at least 370 deaths.