2019’s Xarelto settlement demonstrates that in mass torts litigation, the merits of lawsuits seem not to matter much, if at all. The reality is that it is the sheer volume of cases that a defendant faces that now drives corporate litigation strategy.
In March, Bayer and Johnson & Johnson agreed to settle more than 25,000 cases involving their jointly developed blood-thinning medication, Xarelto, for $775 million. They made this decision despite an unblemished record in court. Rather, the company understandably settled “to avoid the distraction and significant cost of continued litigation.”
Plaintiffs claimed the companies failed to warn of the danger of excessive bleeding when taking the FDA-approved medication. Xarelto is prescribed for patients who have atrial fibrillation, deep vein thrombosis, and other serious ailments. The medication is intended to thin the patient’s blood in order to avoid clotting because the patients for whom it is prescribed are at risk for stroke, pulmonary embolism, and other life-threatening conditions.
Prior to the March 2019 settlement, plaintiffs’ lawyers aggressively searched for a viable case against the defendants. There were close to 2,000 active cases in the Philadelphia Court of Common Pleas, but the defendants had been victorious in the only three cases tried to completion. The plaintiffs’ bar was strategic in targeting Philadelphia, as it is known for its plaintiff-friendly judges and low barriers of entry. There were 1,854 cases targeting Xarelto in June 2018, and out-of-state plaintiffs accounted for 84 percent of these cases.
Plaintiffs’ lawyers and so-called “aggregators” spent millions of dollars on advertisements to increase the number of potential claimants. In 2016, Xarelto was the most targeted product of mass-torts lawyer advertisements on television. A total of $37 million was spent on 128,800 national television ads to identify potential plaintiffs. This does not include the money spent on local cable ads.
“Patients are dying because they are afraid to take the medications prescribed for them due to the fear brought on by these negative and one-sided campaigns.”
– Dr. Ilana Kutinsky
These ads have developed into an essential piece of mass tort lawyers’ marketing strategies. While they are annoying, the most significant problem is that they can frighten viewers to the point they decide to stop taking their physician-prescribed medications. A recent 2019 study authored by nine FDA researchers showed the real-life dangerous consequences of these ads. Through November 15, 2017, the FDA received 66 reports of adverse events following patients discontinuing their blood thinner medication (Pradaxa, Xarelto, Eliquis, and Savaysa) after viewing a plaintiffs’ lawyer ad. Most of these patients were elderly (median age 70) and 98 percent of these patients stopped their use of the medication without consulting with their doctor. Thirty-three patients experienced a stroke, 24 experienced another serious injury, and seven people died.
Dr. Ilana Kutinsky, the physician for one of the deceased, directly associated these ads with patients’ deaths: “Patients are dying because they are afraid to take the medications prescribed for them due to the fear brought on by these negative and one-sided campaigns.”