Androgel Lawsuits Proposed for Bellwether Trials in Testosterone Drug MDL

As thousands of testosterone drug lawsuits continue to move forward in the federal court system, a group of 14 cases involving injuries stemming from use of Androgel have been identified by the parties for potential bellwether trials. However, the judge presiding over the consolidated federal litigation has raised concerns about some of the cases proposed.

Since June 2014, all Androgel lawsuits, Testim lawsuits, Axiron lawsuits, Androderm lawsuits and other claims involving problems with testosterone replacement therapy have been centralized before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois, as part of a federal MDL, or multidistrict litigation.

Each of the cases raise similar allegations the the makers of these blockbuster drugs failed to adequately warn men and the medical community about the potential health risks associated with side effects of testosterone drugs, which have been linked to reports of heart attacks, strokes, blood clots and wrongful death.

There are currently at least 5,500 cases consolidated before Judge Kennelly to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different judges and so that a series of early “bellwether” trials can be held to help the parties gauge how juries may respond to certain evidence and testimony may be repeated throughout the litigation.

Since Androgel is the most widely used testosterone replacement therapy, Judge Kennelly previously established a bellwether plan that calls for a series of early trials to go before juries over the second half of next year involving use of this specific drug. While the outcomes of these trials will not be binding on other claims in the litigation, they may influence eventual testosterone injury settlement negotiations with the manufacturers.

Androgel Bellwether Trial Proposals

Earlier this week, plaintiffs and defendants each submitted a list of cases involving use of Androgel, which have been proposed for the early bellwether trials. These cases were selected from a pool of 24 claims previously identified by the court, which have been going through case-specific discover in preparation for trial.

Both the plaintiffs bellwether selection list (PDF) and the defendants bellwether selection list (PDF) were submitted on July 25, with neither having seen the other’s selections in advance. The defense lists eight cases they believe should be chosen for bellwether trials. However, plaintiffs submitted six cases.

Each side detailed their respective positions about why the remaining cases should not be considered for these early bellwether trials, explaining why the cases may be outliers or not representative of other lawsuits in the litigation.

“The purpose of selecting initial trial cases from a large pool of bellwether discovery cases is to learn and test general issues for the benefit of all — the Court, Plaintiffs, and Defendants,” the proposal by the Plaintiffs Steering Committee notes. “There are several significant issues, and those cases that have the most representative facts, and that do not turn on case-specific issues, should be selected to serve as the initial trial cases, as they will prove most instructive to the litigation as a whole.”

In a docket entry (PDF) posted yesterday, Judge Kennelly indicated that he has reviewed the submissions, but indicates that he has questions regarding a number of cases proposed by each side, as well as concerns about why some cases were not selected. The Court has scheduled a hearing on the bellwether trial selections for August 3, with the expectation of adhering to the previously established deadline of August 5, for identifying the final bellwether trial cases.

Following a series of six cases involving Androgel injuries, which are expected to go to trial starting next July, Judge Kennelly has previously indicated that second series of bellwether trials will be held involving problems with other testosterone products. However, if the manufacturers fail to settle or otherwise resolve the litigation following the bellwether process, thousands of cases may be remanded back to U.S. District Courts nationwide for individual trial dates.