Could use of social media by plaintiff counsel and prejudicial comments scupper a $27.5 million Xarelto plaintiff verdict? The defense certainly thinks so…
Philadelphia, PAA verdict in favor of the plaintiff in a bellwether Xarelto lawsuit may be all for naught if the defense team for co-defendants Janssen Pharmaceuticals Inc. and Bayer AG are successful in having the verdict tossed.
The reason? According to allegations made by the defense legal team following the verdict, jurors may have been prejudiced in the wake of social media posts allegedly made by members of the plaintiff’s legal team attempting to associate Bayer, a German company, with Nazis in the minds of the jurors.
But the other side shot back. According to Law360 (12/18/17), legal counsel from the plaintiff’s camp filed a brief in opposition to that claim, asserting that any such social media posts together with comments made during closing arguments are irrelevant, and should not be a part of the official record of the Court in the Xarelto Bleeding Issue lawsuit.
At stake is a jury award of $1.8 million in actual damages for the plaintiff, and another $26 million in punitive damages.
The plaintiff in the case is Lynn Hartman, who brought her Xarelto Bleedout lawsuit in May of 2016 following gastrointestinal bleeding Hartman asserted was associated with her use of Xarelto for about a year. The new-age blood thinner was approved by the US Food and Drug Administration (FDA) as equally safe and effective as Coumadin (warfarin), while at the same time easier to use with less stringent monitoring.
Plaintiffs, in deference, highlight the lack of a useful antidote should unforeseen Xarelto bleeding complications emerge. While the anti-coagulation properties of warfarin can be effectively reversed with an infusion of Vitamin K, Xarelto (rivaroxaban) does not respond in the same fashion. Plaintiffs assert that Janssen and Bayer were misguided in readying Xarelto for market without the availability of an effective reversing agent.
According to Law360 Hartman asserts she was not sufficiently warned as to the risk for Xarelto side effects that could include Xarelto death, should serious bleeds occur.
The verdict favoring the plaintiff was an important win, in that three previous bellwether trials in the Xarelto mass tort in Philadelphia went for the defense.
However, the legal team for Bayer and Janssen (the latter a subsidiary of pharmaceutical giant Johnson & Johnson) argued on December 15 that prejudicial comments and posts allegedly attributed to the plaintiff legal team and posted to social media sites such as Instagram may have cast co-defendant Bayer AG in an unfair light.
According to Law360, Hartman’s legal team made several references to the German heritage of Bayer AG as a corporation, noting that Bayer officials conducted depositions in German.
The defense also took exception to Instagram posts that allegedly were accompanied by the hashtag #killinnazis, which the defense opined lay the groundwork for a dangerous association in the minds of the jurors.
“Courts regularly overturn jury verdicts where counsel made similar xenophobic and offensive statements in closing argument – including by attempting to connect a party to Nazi Germany – concluding that such conduct is so prejudicial that the only remedy is to order a new trial,” the defense argued in a post-trial motion. “This court should do the same.
“Plaintiff’s counsel’s use of this inappropriate, inflammatory and derogatory hashtag in public postings is not only unprofessional and offensive – it bears directly on counsel’s motive for highlighting Bayer’s German witnesses and headquarters in closing argument, and for making inflammatory statements such as ‘[t]he bodies are literally piling up,’” the companies said in their filing of December 15.
Plaintiff counsel fired back three days later – on December 18 – noting that “these Instagram posts have no relevance to the Hartman case, and defendants’ request to include them as part of the trial court record is based solely on an unsubstantiated, tenuous and wholly inaccurate claim that plaintiff’s closing arguments implied and were motivated by xenophobic intent.”
The Court has yet to rule on the issue. The Xarelto lawsuit is Hartman v. Janssen Pharmaceuticals Inc. et al., Case no. 160503416, in the Court of Common Pleas of Philadelphia County, Pennsylvania.
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