Androgel Verdict of $140M in Second Bellwether Trial Provides Another Strong Signal for Testosterone Drug Lawsuits

A federal jury has ordered AbbVie to pay more than $140 million in damages to a man who suffered a heart attack on Androgel, which may be a sign of big trouble for drug makers facing thousands of testosterone drug lawsuits that raise similar allegations over failure to warn users and the medical community about the increased risk of experiencing cardiovascular side effects. 

The verdict came in the second federal “bellwether” trial scheduled in the federal court system, where more than 6,500 Androgel lawsuits, Testim lawsuits, Axiron lawsuits and other claims are pending over injuries allegedly caused by testosterone replacement therapy.

Following a trial involving an Androgel heart attack lawsuit filed by Jeffery Konrad, the Illinois federal jury ordered AbbVie to pay $140,000 in compensatory damages, then added another $140 million in punitive damages, which are designed to punish the drug maker for recklessly endangering the lives of men using their testosterone gel.

Konrad’s case originally went to trial in May 2017, but ended in a mistrial, after one of the attorneys involved in the case experienced a sudden illness.

In July 2017, the first “bellwether” trial to reach a jury resulted in another massive punitive damage award against the makers of Androgel, involving similar heart attack allegations. In that case, the jury ordered AbbVie to pay $150 million in punitive damages, but did not award the plaintiff any compensatory damages, leading to a various post-trial motions by each side.

The large punitive damage awards returned in the first two cases may be a sign of big problems for testosterone drug makers, as the federal judge presiding over the litigation previously determined that evidence will be allowed during future trials to establish whether the drug makers should be punished for their reckless behavior, including information that would only be admissible to establish the propriety or amount of punitive damages.

Unlike compensatory damages, which are designed to provide compensation for damages suffered by the plaintiff, punitive damages are designed to punish the defendant. Such damages are typically much higher, as they are designed to deter similar behavior.

Additional bellwether trials are set to begin against AbbVie early next year, with claims against Auxilium Pharmaceuticals, the makers of Testim, set to begin in early November 2017 and April 2018, and claims against Eli Lilly, the makers of Axiron, set to begin in January and March 2018.

While the outcomes of these early trial dates are not binding on other claims, they are being closed watched as a gauge for how juries are likely to respond to similar evidence and testimony that will be involved in all cases. If the parties fail to reach testosterone injury settlements or otherwise resolve the litigation following the bellwether trials, hundreds of individual cases may be set for trial in U.S. District Courts nationwide by late 2018 or early 2019.