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As a growing number of testosterone drug lawsuits continue to be filed by men throughout the U.S., discovery and depositions continue in a small group of Androgel cases that are being prepared for early trial dates in the federal multidistrict litigation (MDL).
There are currently more than 5,000 Androgel lawsuits, Axiron lawsuits, Testim lawsuits, Androderm lawsuits and other claims brought over the side effects of testosterone replacement therapy, including claims for men who allegedly suffered a sudden heart attack, stroke, blood clot or death.
Given the common questions of fact and law raised in the cases, complaints filed throughout the federal court system have been centralized for pretrial proceedings before U.S. District Judge Matthew Kennelly in the Northern District of Illinois. The process is designed to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the courts.
As part of the coordinated litigation, Judge Kennelly previously established a “bellwether” process, where a small group of cases filed against AbbVie, the makers of Androgel, are being prepared for early trial dates, since their testosterone gel is the most widely used of the “low T” drug on the market.
A series of six cases are expected to go to trial between April and November 2017, which will help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation. While the outcomes of these trials are not binding on other claims, they are being closely watched by those involved in the cases, as they may influence eventual negotiations to reach testosterone injury settlements.
Androgel Bellwether Status Conference
In advance of a conference before Judge Kennelly on April 13, the parties submitted a joint status report (PDF) that provides an update on the progress of discovery in the bellwether cases and outlines several areas of disagreement between the parties.
AbbVie has indicated that some extensions in the discovery schedule will be required, claiming that more time is needed to produce certain documents and testimony due to the volume and timing of medical record collection, as well as the growing scope of sales representative discovery and difficulties coordinating deposition dates with many plaintiffs’ doctors.
Attorneys serving on a Plaintiffs Steering Committee (PSC) are opposed to any further delays, arguing that it was inappropriate for the manufacturer to seek a delay in discovery as part of a status conference, indicating that it should be made with a proper motion before the Court.
“With regard to AbbVie’s sudden request for an extension of the bellwether schedule, the PSC does not presently agree that another extension of the schedule is warranted because these dates and the amount of work required to complete both the core bellwether work-up and generic discovery were known to both parties and the Court at the time the schedule was recently amended/extended,” plaintiffs’ leadership counsel argued. “Notwithstanding, should AbbVie seek an extension, they should make a motion, rather than haphazardly submit contested and questionable facts and arguments into a joint report that they belatedly dropped on the PSC on the 11th hour without ample time for the PSC to truly respond.”
According to minutes (PDF) entered on the docket following the status conference, any request by AbbVie to modify the current bellwether discovery, pretrial and trial schedule should be filed by April 15, with any response by plaintiffs due by April 19. The issue will likely be addressed at the next case management conference scheduled for May 19.
During the conference, AbbVie also urged the Court to exclude from the bellwether process any lawsuit involving duel use of Androgel and another testosterone replacement product, indicating that such cases are too complex and unique to be representative or beneficial in gauging the strengths and weaknesses of arguments. However, plaintiffs argue that the mixed use cases that have been identified by AbbVie each involve, for the most part, uses of other testosterone drugs that were too remote from the date of the plaintiff’s injury to be a factor in the case.
The current Androgel bellwether schedule calls for core discovery to be completed in 32 initial pool cases by May 23, 2016. A proposal for selection of the eligible trial cases is to be submitted by June 7, 2016, after which the court will select up to 12 claims for trial. Depositions of expert witnesses in those cases will be completed by December 2, 2016, following which any motions for Summary Judgement or challenges to the admissibility of expert testimony will be considered by the Court.
Androgel trials are expected to begin on April 21, 2017; June 5, 2017; July 10, 2017; August 21, 2017; September 25, 2017 and November 6, 2017.
Following these bellwether Androgel trial dates, a second series of trials are expected to be scheduled involving other “low T” drugs. Therefore, any further delays in the discovery and bellwether process will also have an impact on claims involving use of Axiron, Testim, Androderm or other testosterone drugs.