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AndroGel Testosterone Lawsuit Discovery Extension Plans Could Push Back Bellwether Trials

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As thousands of testosterone lawsuits continue to move forward in the federal court system, both plaintiffs and defendants have asked the U.S. District Judge presiding over the litigation to give them additional time to prepare a small group of Androgel cases for early trial dates, but differ significantly on how much of a delay is necessary.

In a joint status report (PDF) submitted on November 18, plaintiffs indicate that an extra 90 days of core discovery are all that is needed to complete the bellwether process. However, attorneys representing AbbVie, the manufacturer of the most widely used testosterone drug, Androgel, indicates that up to an additional year needs to be added to the schedule.

In the federal court system, all product liability lawsuits filed over side effects of testosterone replacement therapy are centralized for pretrial proceedings before U.S. District Judge Matthew Kennelly in the Northern District of Illinois, regardless of which specific drug is involved in the case.

There are currently more than 2,700 Androgel lawsuits, Axiron lawsuits, Testim lawsuits, Androderm lawsuits and other complaints involving allegations that the manufacturers of low T drugs failed to adequately warn about the risk that certain men may be more likely to suffer a heart attack, stroke, pulmonary embolism, deep vein thrombosis or other cardiovascular injury while using the medications.

As part of the coordinated pretrial proceedings in the federal multidistrict litigation (MDL), Judge Kennelly has ordered that a small group of Androgel testosterone lawsuits be prepared for early trial dates, as that is the most widely used drug involved in the litigation.

Known as a bellwether process, the early trials are designed to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation, potentially facilitating eventual testosterone injury settlements.

Androgel Bellwether Process

While a series of six trials were originally expected to begin between October 2016 and April 2017, the parties have asked Judge Kennelly to extend the bellwether discovery schedule, which will delay the start of the first jury trials.

The Plaintiffs’ Steering Committee (PSC) has proposed that all dates in the original bellwether schedule should be extended 90 days, indicating that will provide a “well conceived schedule” for litigating the bellwether cases towards trial dates that would be ready to go before juries between January 2017 and July 2017.

In contrast, AbbVie calls for a complete re-working of the schedule, which would delay the start of the first trials until at least the end of 2017. The drug maker calls for extending core fact discovery an additional 37 days, until June 30, 2016, and pushing the selection of actual bellwether trial cases until August 1, 2016. Following that selection, the drug maker indicates that case-specific and expert discovery for the trial cases should continue until the end of February 2017, with dispositive and other pretrial motions ending September 1, 2017.

In the joint filing, plaintiffs indicate that AbbVie was asking for more time than is necessary to account for the collection and production of documents from sales representatives that called on doctors in the selected cases, indicating that the drug maker has known about the issue for months and should have these files ready.

“In sum, the PSC proposal would start the first trial in January 2017,” according to the portion of the joint report completed by plaintiffs. “This is a reasonable delay of the original trial schedule and still keeps the MDL moving in an efficient manner.”

Following the Androgel trials, Judge Kennelly has indicated that a second group of bellwether trials are expected to go before juries involving lawsuits pending against other manufacturers.

The next case management conference is scheduled for December 16.

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