Androgel Testosterone Lawsuits to Proceed Toward Trial in MDL, Without Bifurcation

The U.S. District Judge presiding over all federal testosterone lawsuits has rejected a request by AbbVie to bifurcate expert discovery and summary judgment during pretrial proceedings, outlining the schedule for selecting and preparing a group of six Androgel cases to go to trial between October 2016 and April 2017.

There are currently more than 1,500 product liability lawsuits pending throughout the federal court system involving men who suffered heart attacks, strokes, blood clots or other injuries allegedly caused by side effects of testosterone replacement therapy, such as Androgel, Testim, Axiron or other similar “low T” drugs.

Over the past year, the cases have been consolidated in the federal court system as part of an MDL, or Multi-District Litigation, which is centralized U.S. District Judge Matthew Kennelly in the Northern District of Illinois.

As part of the coordinated discovery and pretrial proceedings, Judge Kennelly previously established a process for exchanging fact sheets containing specific information about each claim, so that a small group of Androgel testosterone lawsuits can be selected for a “bellwether” program.

Since Androgel is the most widely used testosterone replacement therapy, Judge Kennelly determined that a series of six trials will begin later next year to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

In a case management order (PDF) issued on May 29, Judge Kennelly rejected a recent request by AbbVie to amend the schedule for selecting bellwether cases, indicating that the drug makers’ request to bifurcate expert discovery and summary judgment (as between general causation and other matters) was not appropriate. Judge Kennelly indicated that there is no way to implement it in a fair and reasonable fashion, but he did agree to elongate the overall process for selecting bellwether cases.

According to the amended order, the parties are now required to submit a proposal regarding the selection process for the AndroGel bellwether case by August 10, 2015. The cases are to be divided into two categories: those involving blood clots from testosterone therapy, such as thromboembolism and deep vein thrombosis injuries; and testosterone heart attack claims. The judge expects to issue a final bellwether selection order by August 31.

By October 31, the plaintiffs and defendants are expected to select eight AndroGel cases dealing with thromboembolism cases and eight cardiovascular injury cases for bellwether discovery. By March 1, 2016, the court expects to choose three thromboembolism cases and three heart attack cases to go to trial.

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.