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The U.S. District Judge presiding over all federal testosterone drug lawsuits has set the order of the first two bellwether claims against Eli Lilly over the side effects of their Axiron gel, which are set to go before juries on January 28, 2018 and March 7, 2018.
There are currently more than 6,000 Axiron lawsuits, Androgel lawsuits, Testim lawsuits, and other claims brought on behalf of individuals who suffered a heart attack, stroke, blood clot or other injuries after using the controversial testosterone replacement therapy drugs.
Given similar questions of fact and law raised by each plaintiff, the cases have been centralized before U.S. District Judge Matthew Kennelly in the Northern District of Illinois for coordinated discovery and management, as part of a federal multidistrict litigation (MDL).
To help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation, Judge Kennelly has established a bellwether program, where a number of individual claims against each major drug maker have been set to go to trial.
In a case management order (PDF) issued on November 22, Judge Kennelly scheduled the first Axiron bellwether trial to begin on January 28, involving a claim by John Debroka, Jr. (PDF), who suffered a deep vein thrombosis injury in January 2014 after using the testosterone replacement therapy drug. The second Axiron case will go to trial on March 7, involving a lawsuit filed by Tracy Garner (PDF), who suffered a heart attack just days after beginning Axiron treatment in March 2013.
In addition, in a joint status report (PDF) submitted by parties on November 30, competing proposals were outlined for the preparation of additional cases involving “mixed use” of different drugs. While the plaintiffs are proposing that approximately 160 specific cases be worked up for trial, the drug makers proposal calls for expert disclosures in all cases, with a far fewer number of specific cases prepared for trial.
“To be sure, the time for trickle litigation is for the most part over, with discovery as to all bellwether cases almost complete, with all trials to be finished in early 2019 or before,” according to the position statement submitted by plaintiffs. “The goal of the original bellwether process was to select trial cases that were the most representative of TRT cases, and to allow them to proceed to trial to provide guidance to the parties and the Court. Once the original bellwether trials are completed, the aim of the parties and the Court should shift to select cases in a fashion that allows for the most systematic, efficient and fair approach to litigating the remaining cases. In this regard, if the Defendants are not willing to engage in meaningful good faith settlement negotiations of these cases, then the parties need to litigate these cases towards resolution (trial), and not simply one-by-one or handful-by-handful. Indeed, there are thousands of cases that need to be worked through the judicial system, and to accomplish this, the parties need to start preparing these cases for just that.”
Several early trial dates have already resulted in massive damage awards, including an award of $150 million in punitive damages in July 2017, and a separate $140 million verdict in October 2017. Each of those verdicts came in trials against AbbVie, the manufacturer of the most widely used testosterone drug, Androgel.
The first bellwether trial against Auxilium, over a heart attack allegedly caused by it’s Testim gel, began last month and ended in a defense verdict, marking the only win so far for the drug makers in the bellwether cases.
Although the outcomes of these bellwether trials are not binding on other plaintiffs, if the manufacturers fail to reach testosterone drug settlements, thousands of individual cases may be set for trials nationwide, which would take years to complete.