Post Trial Motions Filed in Androgel Testosterone Therapy Bellwether Lawsuit

Following a $150 million punitive damage award in the first Androgel testosterone therapy bellwether trial, where the jury did not award any compensatory damages, plaintiffs are calling for the court to amend the judgment to conform with undisputed evidence presented, or grant a new trial.

The contradictory verdict came last month, in case filed by Jesse Mitchell, who suffered a heart attack that was allegedly caused by side effects of Androgel. The lawsuit was part of a series of early trial dates scheduled to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout more than 6,500 testosterone therapy lawsuits pending in the federal court system.

At the conclusion of the two-week trial, the jury found in favor of the plaintiff on the issue of fraudulent misrepresentation, which required that the Mitchell prove that he was damaged as a direct result of his or his doctor’s reliance on the representation made by the drug’s manufacturer, AbbVie.

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The jury elected to award no economic damages for medical expenses or non-economic damages for pain and suffering, but did award $150 million in punitive damages, which were designed to punish the testosterone therapy drug maker for their actions surrounding the marketing and sale of the blockbuster treatment.

On August 21, Mitchell filed a motion to amend (PDF) that judgment, asking the Court to include at least the $136,408 in medical expenses stemming from his heart attack injury.

“[I]n finding for the Plaintiff on the [fraudulent misrepresentation] claim, the jury specifically found, by clear and convincing evidence, that Plaintiff’s heart attack was caused by AbbVie’s conduct,” according to the motion. “In light of that finding, the award of $0 in economic damages was clearly the result of an oversight. It was undisputed that the medical bills submitted at trial were incurred because of the heart attack. Nor did AbbVie question the amount of the medical bills or offer an alternative calculation of Plaintiff’s economic damages at trial. The jury’s $0 economic damage verdict is contrary to reason and contrary to the weight of the evidence presented at trial, all of which showed that Plaintiff incurred medical expenses of $136,408.”

In the event the Court does not amend the judgment to conform with the undisputed evidence, Mitchell indicates that a new trial should be granted on the issue of economic and non-economic compensatory damages.

Without an award of any compensatory damages, it is questionable whether the large punitive damage award will stand.

In a separate motion (PDF) filed by the drug makers, the Court is urged to strike the punitive damages award and enter judgment for AbbVie as a matter of law.

“Because the law prohibits a verdict awarding punitive damages in the absence of compensable injury, the jury’s punitive damage award constitutes a ‘manifest legal error,’” according to the drug maker. “The court should therefore amend the judgment to vacate the punitive damages award.”

Additional Androgel lawsuits, Testim lawsuits and Axiron lawsuits are expected to go before juries over the remainder of this year and early next year.

While the outcomes of these bellwether verdicts are not binding on other claim in the litigation, they may influence eventual testosterone therapy settlement negotiations for men who suffered heart attacks, strokes, blood clots and other injuries.

The parties are scheduled to meet with U.S. District Judge Matthew F. Kennely on Thursday, for a case management conference.


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