AbbVie Seeks Dismissal of Androgel Lawsuits as Bellwether Selections Approach

As the U.S. District Judge presiding over all federal testosterone lawsuits plans to meet with the parties today during a status conference, AbbVie is seeking the dismissal of certain Androgel lawsuits that may be eligible for inclusion in the bellwether program.

There are currently more than 1,750 product liability lawsuits pending in a federal multidistrict litigation (MDL) involving men who suffered heart attacks, strokes, blood clots and other injuries allegedly caused by side effects of testosterone replacement therapy.

While most of the cases involve use of Androgel, which is the most widely used low testosterone drug, the MDL also includes cases involving other products, such as Axiron, Testim, AndroDerm and other creams, injections and capsules.

For coordinated pretrial proceedings, the cases are centralized before U.S. District Judge Matthew Kennelly in the Northern District of Illinois to avoid duplicative discovery into common issues in the cases, prevent conflicting rulings from different courts and to serve the convenience of the parties, witnesses and the courts.

Judge Kennelly has previously ordered the parties to select a small group of Androgel cases to be part of a “bellwether” pool, which will go through case-specific discovery in preparation for a series of early trial dates late next year.

Next month, the parties are required to submit a proposal for selecting a group of 32 cases from about 700 lawsuits over Androgel that are eligible for these bellwether trials. However, Abbvie indicates that many of the plaintiffs have submitted “materially deficient” Plaintiff Fact Sheets (PFS), preventing the entire pool of cases from being complete and well defined.

In a motion (PDF) filed this week, AbbVie asked Judge Kennelly to dismiss with prejudice up to 169 lawsuits if plaintiffs do not address deficiencies in their PFS by August 14.

“Until there is a defined and complete pool of known cases that is not capable of being “gamed”… the Court will be unable to establish and then implement the process by which it picks the 32 cases to be worked up for potential bellwether trial,” said the drug maker in the motion.

In a joint status report (PDF) filed the same day, the Plaintiffs’ Steering Committee (PSC) responded to AbbVie’s request.

“Upon subsequent review of the alleged deficiencies by counsel in the underlying cases, it is apparent that the overwhelming majority of the alleged deficiencies are without basis,” the plaintiffs’ attorneys noted. “The PSC is concerned that AbbVie is attempting to use the PFS and related deficiency process as a tactical sword in the bellwether process, rather than as a fact finding and discovery tool to gather information and collect plaintiffs’ medical records with authorizations.”

The issue is likely to be addressed during a status conference today before Judge Kennelly.

Androgel Bellwether Trials

The bellwether cases are designed to be representative of large numbers of other claims in the litigation, with the bellwether trials providing a gauge for how juries may respond to certain evidence and testimony that is likely to be similar to what will be offered by many plaintiffs.

All of the complaints involve allegations that AbbVie and other testosterone drug makers failed to adequately research the medications or warn that certain men may face an increased risk of suffering a heart attack, stroke, pulmonary embolism, deep vein thrombosis or sudden death while using the testosterone drugs.

The manufacturers have also been accused of encouraging men to seek prescriptions for “low T” if they suffer any number of general symptoms common among most men as they age, such as decreased strength, lack of energy and reduced sex drive.

By October 31, the bellwether pool is expected to be reduced to eight AndroGel cases dealing with thromboembolism cases and eight cardiovascular injury cases, which will then go through case specific discovery. By March 1, 2016, the court is expected to choose three thromboembolism cases and three heart attack cases that will go before juries.

Individual trial dates for the three thromboembolism cases have been scheduled to begin October 31, 2016, December 5, 2016 and January 9, 2017. The three cases involving cardiovascular injuries are scheduled to begin on February 13, 2017, March 20, 2017 and April 24, 2017.

While the outcomes of these early trial dates are not binding on other cases, they may influence eventual Androgel settlement negotiations. Following the bellwether process, if AbbVie fails to resolve large numbers of cases, they may face hundreds of individual trial dates spread throughout the country.