Testim Gel Heart Attack Lawsuit Cleared for Trial to Proceed November 6

The U.S. District Judge presiding over the coordinated litigation for all testosterone drug lawsuits has denied a motion to dismiss a Testim gel heart attack case set for trial to begin on November 6, but did grant summary judgment in a second Testim case that was set to go to trial against Auxilium in April 2018.

The cases are part of a series of early “bellwether” trial dates scheduled in a federal multidistrict litigation (MDL), which currently includes more than 6,000 Androgel lawsuits, Testim lawsuits, Axiron lawsuits and other claims brought on behalf of individuals who suffered a heart attack, stroke, blood clot or other injuries after using the testosterone replacement therapy drugs.

Given similar questions of fact and law raised by each plaintiff, the lawsuits have been centralized before U.S. District Judge Matthew Kennelly in the Northern District of Illinois for coordinated discovery and management during pretrial proceedings.

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 trial program, which will put a handful of cases against each major drug maker before a jury. The bellwether trials began over the summer against AbbVie, the makers of Androgel, which is the most widely used testosterone replacement therapy. Additional cases are scheduled in the coming months against Auxilium, the makers of Testim, and Eli Lilly, the makers of Axiron.

In July 2017, the first lawsuit to reach a jury resulted in a $150 million punitive damage award against the makers of Androgel, indicating that AbbVie should be punished for their reckless disregard for the safety of users of their testosterone drug.

Earlier this month, a second Androgel trial ended in another massive verdict against AbbVie, with $140 million in compensatory and punitive damages awarded to one plaintiff.

A Testim heart attack lawsuit filed against Auxilium by Steve Holtsclaw is set to be the third case, and is scheduled for trial to begin on November 6. In the case, Holtclaw indicates that a 2014 heart attack was caused by side effects of Testim, presenting claims for failure to warn, design defect, negligent misrepresentation, fraud, breach of express warranty, strict products liability and violations of a state consumer protection act.

In a case management order (PDF) issued on October 23, Judge Kennelly rejected a request by Auxilium for summary judgment in the Holtclaw case, indicating that the trial will proceed as scheduled. However, the court did grant Auxilium’s motion for summary judgment in a second case filed by Isaac Owens, which was slated to begin in April 2018, after excluding the expert witnesses designated in the case.

Two experts designated in the Owens case to establish that Testim caused a deep vein thrombosis were excluded, after Judge Kennelly found that the evidence would not be sufficiently reliable. Without expert testimony to support his assertion that Testim caused the DVT injury, Owens case was dismissed and a substitute case will be selected for the April 2018 trial date.

Judge Kennelly denied a similar motion to exclude Holtclaw’s expert witness testimony about the link between his heart attack and Testim gel, and also rejected arguments by Auxilium that the claims were pre-empted or otherwise barred.

Following additional bellwether trials against various drug makers, if testosterone injury settlements or another resolution for the litigation is not reached, thousands of individual cases may be remanded back to U.S. District Courts nationwide in the coming years.