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Summary Judgment Sought in Androgel Injury Lawsuits

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With the first Androgel bellwether trials set to begin in a few months, AbbVie has filed a motion for summary judgment, asking the U.S. District Judge presiding over the litigation to exclude expert testimony that the plaintiffs plan to introduce in support of their claims that side effects of testosterone replacement therapy caused men to suffer heart attacks, strokes and other health problems.

There are currently more than 6,500 Androgel lawsuits, Axiron lawsuits, Testim lawsuits and other testosterone drug injury claims pending in the federal court system, which are centralized before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois, as part of an MDL, or Multidistrict litigation.

As part of the coordinated pretrial proceedings, Judge Kennelly has established a bellwether program, where small groups of cases are being prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that will likely be repeated throughout the litigation.

Since Androgel is the most commonly used testosterone replacement therapy, a series of six cases involving that drug were selected first. Those bellwether trials are set to begin over the second half of this year, with the first case scheduled to go before a jury on June 5, 2017, and subsequent cases expected to begin about every four weeks thereafter.

Last week, AbbVie filed a motion (PDF) that seeks to prevent certain plaintiffs’ experts from providing testimony on general and specific causation that Androgel causes arterial cardivascular problems or venous thromboembolic events, arguing that the expert opinions offered by plaintiffs are not scientifically sound. In addition, the manufacturer of Androgel asks the court to grant summary judgment, maintaining that no reasonable jury could conclude that Androgel was the specific cause of any of the claimed injuries.

“In this case, ‘leaving it to the jury’ is certain to cause confusion and prejudice. No matter how technical-sounding, the evidence and methods relied upon by Plaintiffs’ experts must be assessed rigorously,” the 125 page motion states. “Indeed, the jury can only decide the facts based upon what the Court determines is reliable science. Because they flout the metrics of reliable science, the opinions of Plaintiffs’ experts must be excluded.”

The manufacturer claims that the plaintiffs’ experts are not relying on statistically significant results in their studies to determine an association between testosterone and plaintiffs’ injuries. Statistical significance is usually how causal factors for cardiovascular problems and venous thromboembolism are determined, the motion indicates.

If AbbVie is successful in having the expert testimony rejected, then it could endanger all of the lawsuits over Androgel pending in the federal court system, since all plaintiffs rely on identical or very similar expert testimony for general and specific causation. However, plaintiffs have yet to respond to the motion, and a final ruling on the admissibility of the expert testimony will not be provided by Judge Kennelly until after oral arguments are presented.

Following the series of Androgel bellwether trials later this year and early next year, Judge Kennelly is expected to schedule a second group of bellwether trials involving individuals who used other drugs, including Axiron, Testim and other testosterone treatments. Following the conclusion of all coordinated bellwether trials, if the parties fail to reach testosterone settlements or another resolution for the litigation, hundreds of individual cases may be remanded back to U.S. District Courts nationwide for separate trial dates.

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