Testosterone Replacement Therapy Bellwether Trial Against Auxilium Set for Trial to Begin Nov. 6

Following a two “bellwether” trials involving AbbVie’s Androgel, each of which ended in a massive punitive damage award over the drug maker’s failure to warn about the side effects of testosterone replacement therapy, a third lawsuit is set to before a jury on November 6, involving injuries allegedly caused by Auxilium Pharmaceutical’s Testim gel. 

The cases are part of a series of early trial dates scheduled in the federal testosterone drug litigation, which 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 controversial 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, as part of a federal multidistrict litigation (MDL).

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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 involving claims against each major drug maker, which started over the summer, and is expected to continue throughout 2018.

In July 2017, the first bellwether trial 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.

The third bellwether trial will begin on November 6, involving a case filed against Auxilium, which raises similar allegations that the drug maker failed to adequately warn about the side effects of their testosterone drug Testim.

In a case management order (PDF) issued on October 6, Judge Kennelly indicated that a 70 hour time limit will be imposed on the parties at trial. This should result in the completion of the trial in about 14 trial days, using longer-than-normal schedules. The time will be divided evenly between the plaintiff and defendants, and does not include the time required for jury selection.

The Testim bellwether trial will be followed by a fourth case, involving claims against Eli Lilly over their testosterone drug Axiron, which is set to begin on January 29, 2018.

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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