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The U.S. District Judge presiding over all federal testosterone lawsuits has ordered a re-trial for a second “bellwether” case that resulted in a massive verdict for the plaintiff, overturning an original verdict of $140 million for a man who suffered a heart attack while using AndroGel, due to inconsistent findings by the jury.
Earlier this year, a retrial was held in a different bellwether case, involving a lawsuit filed by Jesse Martin, after a jury found that the drug maker should pay $150 million in punitive damages for failing to warn consumers and the medical community about the potential side effects of Androgel, but failed to award any compensatory damages for the plaintiff’s injury.
After a second jury heard the evidence in that case, a $3.2 million verdict was returned in March 2018.
For this latest claim, involving a lawsuit filed by Jeffery Konrad, a jury originally ordered $140,000 in compensatory damages and $140 million in punitive damages following a trial that ended in October 2017. The case originally went to trial in May 2017, but but ended in a mistrial, after one of the attorneys involved in the case experienced a sudden illness.
In a case management order (PDF) issued on July 5, U.S. District Judge Matthew F. Kennelly determined that the verdict must be thrown out and a new trial was ordered. While the jury ruled in Konrad’s favor on claims for negligence, intentional misrepresentation, and misrepresentation by concealment, it ruled in favor of the drug maker on the issue of strict liability, which the Court found was inconsistent, due to common elements in the claims.
“In this case, one of the key disputed issues was causation, specifically whether AndroGel cased Konrad’s heart attack,” wrote Judge Kennelly in a 27 page opinion explaining the need for a new trial on all issues. “The jury was given a single causation instruction that covered all of the claims. Thus the issue of causation on the two claims that have to be retried due to the inconsistency of the jury’s verdicts is anything but ‘distinct and separable’ from the issue of causation on the misrepresentation claims. For this reason, the Court concludes, it would be impossible to limit a new trial to the inconsistent claims ‘without injustice.’ The appropriate remedy for the jury’s inconsistent verdicts on the strict liability and negligence claims is ‘[a] new trial on all claims.'”
Judge Kennelly indicated that the case will be retried in in the fall, at a specific date to be set after discussion with counsel.
A series of 19 other Androgel bellwether trials are expected to begin between October 2018 and March 2019, unless the drug maker negotiates settlements with plaintiffs in the coming months.
Late last month, Actavis announced that it has reached a tentative settlement to resolve all Androderm lawsuits involving their competing testosterone patch. In addition, Auxilium Pharmaceuticals has agreed to settle hundreds of Testim lawsuits and Eli Lilly has agreed to settle all Axiron lawsuits, involving those other testosterone gel products.