Coordination of Low Testosterone Lawsuits in State and Federal Court to be Discussed

Attorneys involved in the litigation over testosterone drugs are scheduled to meet next week with the U.S. District Judge presiding over all federal cases, at which time the Court is expected to review competing proposals regarding the coordination of lawsuits filed in both federal and state courts.

Since June 2014, all Androgel lawsuits and other low testosterone drug lawsuits pending throughout the federal court system have been centralized before U.S. District Judge Matthew Kennelly in the Northern District of Illinois for coordinated pretrial proceedings as part of an MDL, or Multidistrict Litigation.

There are currently more than 250 cases pending before Judge Kennelly, with all of the complaints involving similar allegations that side effects of testosterone replacement therapy caused men to suffer heart attacks, strokes, blood clots and other injuries. Plaintiffs maintain that the manufacturers marketed low testosterone treatments without adequately warning users and the medical community about the potential risks.

In addition to cases pending in the federal court system, there are also a growing number of cases being filed in various state court systems nationwide, with complaints currently pending in Illinois, Missouri, Pennsylvania, California and other states.

Judge Kennelly previously asked the parties to work together to get some coordination between cases in the federal MDL and parrallel state court cases. However, according to a joint status report (PDF) filed on December 4, the parties have been unable to agree on the best way to coordinate the claims.

In a submission (PDF) filed by the defendants on December 3, the drug makers proposed that Judge Kennelly issue a detailed coordination order, which lays out a number of requirements designed to ease discovery burdens on defendants and avoid conflicting schedules for discovery production.

Plaintiffs’ attorneys assigned to leadership roles in the litigation, taking actions on behalf of all men pursuing a case, filed a competing submission (PDF) the same day, indicating that the Plaintiffs’ Executive Committee does not believe that any coordination order is necessary, as the enforceability of any such order on state court judges and litigants would be quite limited.

If a coordination order is to be entered, plaintiffs have an alternative proposal that they indicate “provides a flexible and workable framework for coordination.” According to the plaintiffs’ submission, the proposal put forward by the drug makers would result in “out-of-sequence” discovery, and would place unnecessary burdens on individuals bringing the cases, as well as their counsel and the Court. They point out that the defendants’ proposal would force MDL attorneys to attend depositions in state-court cases, which they maintain is not feasible.

Status of the Federal Testosterone Litigation

A case management conference is scheduled before Judge Kennelly for Monday, December 8. In addition to the competing proposals regarding state court coordination, a joint agenda (PDF) submitted this week asks that the Court review the status of discovery, document production, depositions and other matters pending in the MDL.

The federal Testosteorne MDL was established to reduce duplicative discovery into common issues in cases filed in U.S. District Courts nationwide, as well as to avoid conflicting pretrial orders from different judges and to serve the convenience of the parties, witnesses and the courts.

As part of the coordinated pretrial proceedings, Judge Kennelly has ordered that a small group of Androgel lawsuits be prepared for early trial dates in late 2016 and early 2017. Known as “bellwether” cases, the trials are designed to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

Over the coming months and years, as low testosterone injury lawyers continue to review and file potential claims for men who suffered a heart attack, stroke, blood clot or other injury while using the popular medications, the number of lawsuits pending in the MDL is expected to continue to increase, with most estimates suggesting that there will eventually be several thousand cases consolidated before Judge Kennelly.

While the outcome of any early bellwether trials will not be binding on other claims, the process is designed to help parties evaluate the strengths and weaknesses of their cases, potentially resulting in low testosterone settlements that will avoid the need for individual trials to be scheduled nationwide.