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New Trial Ordered in Androgel Lawsuit Over Fraudulent Misrepresentation

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The U.S. District Judge presiding over thousands of federal testosterone drug lawsuits has ordered a new trial for the first Androgel bellwether case, after an unusual verdict where the jury ordered the drug makers to pay $150 million in punitive damages, but awarded the plaintiff no compensatory damages. 

The Androgel verdict came in July 2017, involving a lawsuit filed by Jesse Mitchell, who suffered a heart attack that was allegedly caused by side effects of the popular testosterone replacement therapy.

The case 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 Androgel lawsuits, Axiron lawsuits, Testim lawsuits and other claims brought against the makers of testosterone drugs 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 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. However, the jury elected to award no economic damages for medical expenses or non-economic damages for pain and suffering.

Despite the decision not to award any compensatory damages, the jury did indicate that AbbVie should pay $150 million in punitive damages, which were designed to punish the drug makers for their actions surrounding the marketing and sale of the blockbuster treatment.

Given similar questions of fact and law raised by each plaintiff in the testosterone drug litigation, 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).

Both sides have challenged the verdict in post-trial motions, and Judge Kennelly issued a court order (PDF) last week, indicating that a new trial will be held only on the fraudulent misrepresentation claims.

In the order, Judge Kennelly noted that both parties tried to avoid a new trial by arguing that the aspects of the jury’s decision that favored them were the “true” goals of the jury. However, he determined that both sides’ arguments were unconvincing, resulting in the need for a new trial, which is now set to begin on March 5, 2018.

“Just as the Court may not give priority to the jury’s finding that Mitchell was damaged for purposes of the fraudulent misrepresentation claim, the Court may not, as AbbVie proposes, treat the award of zero compensatory damages as the jury’s ‘authentic’ finding that negates the liability verdict,” he wrote. “The irreconcilable conflict between the jury’s finding of liability on the fraudulent misrepresentation claim and award of zero compensatory damages requires a new trial on this claim.”

In addition to the retrial of the Mitchell case, a number of other bellwether trials are set to begin against AbbVie and other drug makers over the next year.

Earlier this month, the court announced that Eli Lilly had entered into an Axiron settlement agreement to resolve all of the testosterone claims against the company for an undisclosed amount.

Although the outcomes of these bellwether trials are not binding on other plaintiffs, they are being closely watched by parties involved, as they may influence eventual negotiations to reach testosterone drug settlements, which would avoid the need for thousands of individual cases to be set for trial in courts nationwide over the coming years.

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