Philadelphia skyline. Photo by Shutterstock

The first case from the Xarelto mass tort in Philadelphia is set to begin soon, and, after a string of defense wins in the consolidated federal litigation over the summer, attorneys are paying special attention to the plaintiffs' first try in state court.

The case Hartman v. Janssen is expected to begin at 9:30 a.m. Nov. 6 in City Hall's courtroom 633 before Judge Michael Erdos. It is the first of three set to come before a Philadelphia jury in the coming months, and the first to be tried since the defendants won their third straight verdict in the federal trial in August.

Switching between a state and federal venue is a critical time for all consolidated litigations, and attorneys always pay close attention. But coming off the heels of two defense verdicts in Louisiana federal court and one more defense win in Mississippi federal court, the trial starting Monday is getting a bit more attention than usual, according to lawyers and court watchers.

“It's got people's attention,” said Mark York, a senior consultant with Mass Tort Nexus, a company focused on researching mass torts and providing attorneys information about drug- and device-related litigation.

More than 18,000 cases are pending in the federal MDL over Xarelto, which makes it the second largest litigation nationwide, second only to the consolidated pelvic mesh litigation. In Philadelphia more than 1,500 Xarelto cases are pending. That number is largely flat from the more than 1,400 in the state court inventory as of summer.

Like the cases that were tried in the federal MDL, Lynn Hartman's case focuses on allegations that the blood thinner caused her to develop a dangerous internal bleed. Hartman, like many of the plaintiffs raising claims over the medication, had been prescribed the drug to treat atrial fibrillation, which can lead to blood clots and stroke.

The federal cases that have gone to trial focused on claims that Xarelto makers Bayer and Janssen Pharmaceuticals should have warned physicians they needed to perform additional monitoring on patients before prescribing the drug. Specifically, plaintiffs have argued that doctors should have been told to take a PT, or prothrombin test, that assesses coagulation levels in a person's blood.

Those claims are expected to once again be the focus on the plaintiffs' case, although there have been some arguments about the label allegedly failing to adequately warn about the increased dangers if taken along with Aspirin, and failing to advise about the alleged magnitude of the risks.

A few recent decisions from Philadelphia Court of Common Pleas Judge Arnold New, supervising judge for the court's Complex Litigation Center, have also shaped the litigation. When it comes to the hotly contested issues of whether the plaintiffs can seek punitive damages, or whether the defendants should be barred from arguing that attorney advertising about the litigation had negative health effects, New decided to allow the jury to consider both issues.

Punitive damages were allowed into the third MDL trial, although they were not a part of the first two.

Cozen O'Connor's products liability chair, James Heller, said the three consecutive defense wins show that the plaintiffs have a difficult argument to make before the jury in Philadelphia. He said a lot of the case is going to come down to the treating doctor's testimony.

“Failure to warn claims are typically in the plaintiffs' ballpark,” Heller said. “I think the jurors for the most part can understand the argument that they're treating a symptom where the failure to treat that may result in worse consequences than is associated with the potential risks.”

Kennerly & Loutey attorney Max Kennerly, who is representing plaintiffs with cases in both the Philadelphia mass tort program and the federal multidistrict litigation, said the arguments are not the typical failure to warn claims, so some key differences could emerge in terms of what evidence the state court allows in regarding the design, monitoring and testing.

“That's not the well-worn path,” he said. “A lot could differ about how much a jury hears.”

The transition from the MDL to Philadelphia has come with a bit more buzz than is typical, Kennerly said, especially with attorneys who may be able to file their cases in state, rather than federal court. But those expectations should be tempered, he added.

“If it's a win, I doubt J&J is going to pack it up and settle, and if there's a loss, I doubt the plaintiffs lawyers will discontinue the litigation,” he said. “It's another piece of the puzzle. And that's a good thing. It's how we want the bellwether process to work.”

Wilkinson Walsh + Eskovitz attorney Beth Wilkinson is expected to argue for Bayer, and Kim Moore of Irwin Fritchie Urquhart and Moore is expected to lead the case for J&J. Wilkinson was previously lauded for her role in achieving the swift defense wins in the first two Xarelto trials.

Douglas & London attorney Gary Douglas and Ned McWilliams of Levin Papantonio Thomas Mitchell Rafferty Proctor are also expected to be lead trial counsel for the plaintiffs, with Laura Feldman of Feldman & Pinto, Michael Weinkowitz and Fred Longer of Levin Sedran & Berman, Emily Jeffcott of The Lambert Firm and Roger Denton and Ashley Brittain Landers of Schlichter Bogard & Denton making up the rest of the trial team for the plaintiffs.

In an emailed statement, Weinkowitz said, “Plaintiffs anticipate that the trial will run approximately four to five weeks once the jury is seated.”

An emailed statement from Bayer spokesman Chris Loder said the company “stands behind the safety and efficacy of Xarelto and will vigorously defend it.”

“The health and safety of our patients is Bayer's top priority,” Loder said. “Real-world experience with 31 million patients in over 130 countries continues to confirm the favorable benefit-risk profile of Xarelto for patients like Ms. Hartman who have a high risk of life-threatening blood clots that can cause strokes and other serious medical complications.”

A spokeswoman for J&J also said in an emailed that the company plans to defend against the plaintiffs' allegations.

“The prescribing information for Xarelto clearly, prominently, and repeatedly warns of the risk of bleeding, which is a known risk associated with all anticoagulants,” Janssen spokeswoman Sarah Freeman said.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.