Order of Androgel Cases for Bellwether Trials Proposed by Parties

With thousands of testosterone cases pending in a coordinated federal multidistrict litigation (MDL), the parties have exchanged competing proposals regarding the order for a series of Androgel bellwether trials that are set to begin this summer.

All federal lawsuits filed over failure to warn about the side effects of testosterone replacement drugs, such as Androgel, Testim, Axiron and other popular treatments, are centralized before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois to prevent duplicative discovery, avoid conflicting pretrial rulings and serve the convenience of the parties, witnesses and the courts.

There are currently more than 6,500 cases pending in the MDL, each involving similar claims that the drug makers failed to adequately warn users and the medical community about the risk that men using testosterone drugs may suffer a heart attack, stroke, pulmonary embolism, deep vein thrombosis or other injury.

To help gauge how juries are likely to respond to certain evidence and testimony that may be repeated throughout the litigation, Judge Kennelly has established bellwether programs, where small groups of representative cases are being prepared for early trial dates.

The first series of bellwether trials will involve six Androgel cases, since that is the most widely used type of testosterone replacement therapy. Judge Kennelly has previously indicated that the first trial will begin on June 5, 2017, with additional cases expected to begin about every four weeks thereafter.

On February 27, plaintiffs and defendants submitted a joint list (PDF), outlining the details for each of the Androgel bellwether claims, as well as proposals for the order in which the cases should go before a jury.

Both sides, as well as the Court, appear to agree that the first trial should involve an Androgel lawsuit filed by Jeffrey Konrad, of Tennessee, who suffered a heart attack at age 49, after using the testosterone gel for only a few months.

Following the Androgel trials, the parties are preparing a series of Testim cases that are expected to go before juries starting in November.

According to a joint status report (PDF) submitted the same day as the Androgel bellwether proposals, the parties called for additional time to complete non-expert generic fact discovery in the Testim cases, and indicate that the maker of that testosterone drug is attempting to coordinate the MDL discovery schedule with that of cases pending in Pennsylvania state court, where a Testim trial is scheduled to begin on January 8, 2018.

Following bellwether trials in the MDL, if the parties fail to reach testosterone settlements or another resolution for the litigation, each individual case may be remanded back to the U.S. District Court where it was originally filed for a separate trial date.

According to a Notification of Docket Entry (PDF) posted last week, the parties are scheduled to have a conference call this week to discuss the appointment of a settlement master, which may help facilitate negotiations between the parties.