Federal Testosterone Litigation Set to Retry Bellwether AndroGel Lawsuit

Published on March 7, 2018 by Sandy Liebhard

The federal court overseeing thousands of testosterone lawsuits is preparing to retry a bellwether case filed on behalf of a plaintiff who allegedly suffered a heart attack due to side effects associated with AndroGel.

First Jury Awarded $150 Million in Punitive Damages to AndroGel Plaintiff

The AndroGel lawsuit was the first to go to trial in the U.S. District Court, Northern District of Illinois, where all federally-filed product liability claims involving prescription testosterone treatments and their propensity to cause serious cardiovascular injuries have been centralized for pretrial proceedings.

The trial concluded in July, with the jury ordering AbbVie Inc. to pay $150 million in punitive damages to the plaintiff after finding that the company engaged in false advertising when it marketed AndroGel. However, the plaintiff was not awarded any punitive damages because jurors were unable to conclude that the testosterone treatment actually caused his heart attack.

The Court dismissed the verdict and ordered a retrial in December, after finding that the jury’s decision was inconsistent with evidence presented at trial.

AndroGel Retrial to Begin Next Today

The new trial is scheduled to get underway today. As was the case in the initial trial, the verdict in the retrial could provide insight into how other juries might rule in similar AndroGel lawsuits.

In a Case Management Order dated February 24th, the Court indicated that the jury will be permitted to reconsider all allegations raised in the AndroGel lawsuit. That’s a reversal of the position the Court took in December, when it suggested that jurors would only consider the lawsuit’s fraudulent misrepresentations claims, which required the plaintiff to prove that he was damaged as a direct result of his or his doctor’s reliance on the representation made by the drug’s manufacturer.

“In this case, there is a reasonable likelihood that (perhaps among other things) the jury’s inconsistent verdicts resulted from confusion or misunderstanding regarding the causation requirement, which was common to or overlapping on all of Mitchell’s claims,” the Order stated. “The Court also overrules AbbVie’s contention, made in its motion for judgment as a matter of law filed during the previous trial, that the evidence was insufficient to permit a reasonable jury to find in Mitchell’s favor on the strict liability and negligence claims. For these reasons, the Court vacates the prior judgment in its entirety and orders a new trial on all claims.”

Testosterone Lawsuits and Settlements

The federal testosterone litigation’s second AndroGel trial concluded in August, when that jury ordered AbbVie to pay $140 million in compensatory and punitive damages to another heart attack victim.

In January, Eli Lilly & Co., announced it had tentatively agreed to settle all Axiron lawsuits pending in the proceeding.  And just last month, Endo Pharmaceuticals, its Auxilium subsidiary and GlaxoSmithKline proposed a testosterone settlement to resolve roughly 1,300 lawsuits involving Testim and other drugs.  Details of these agreements have not been disclosed. However, stays have been ordered in all of the affected cases to facilitate the ongoing settlement discussions.

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