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A panel of federal judges has rejected a petition to consolidate and centralize all lawsuits over the testosterone booster Testofen, which is supposed to naturally increase testosterone levels, but has been the subject of several class actions alleging the manufacturers misrepresented the safety and efficacy.
In an order (PDF) issued earlier this month, the U.S. Judicial Panel on Multidistrict Litigation (JPML) denied a recent request that sought to transfer at least two Testofen class action lawsuits to the same judge for coordinated pretrial proceedings. As a result the cases will proceed as individual actions and will not be centralized in the federal court system as part of an MDL, or multidistrict litigation.
Testofen is an extract created from fenugreek seeds, which the manufacturers claimed will increase a male’s testosterone levels. It is often used in supplements that claim they can increase muscle mass and boost male libido, as well as in supplements claiming to improve erectile dysfunction.
In recent months, several class action lawsuits have been filed over Testofen, claiming that the manufacturers have misrepresented that the products safely boost testosterone levels. However, only two of the cases were being considered by the panel.
A motion to consolidate the Testofen testosterone booster lawsuits was filed in January, seeking to centralize the litigation in the District of Massachusetts to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the courts.
“The two actions undoubtedly share some questions of fact concerning the efficacy of nutritional supplements containing Testofen in boosting free testosterone levels,” the JPML said in its decision. “But the scope of the two actions before the Panel are substantially different.”
The judges noted that one case claims that GNC, Gencor and more than a dozen other defendants attempted to defraud consumers in regards to 22 different Testofen products. The other case only involves three products in a single product line, Test X180. Force Factor LLC is the only defendant in that case, though Force Factor is also a defendant in the GNC lawsuit.
The panel also indicated that there are too few cases currently filed to justify consolidation. The judges determined that informal coordination of the cases will suffice.
Testosterone Health Concerns
The Testofen supplement lawsuits come as the prescription drug industry faces its own growing litigation over claims that testosterone boosters may increase the risk of heart attacks, strokes and other cardiovascular problems.
Over the past year, hundreds of Androgel lawsuits, Axiron lawsuits, Testim lawsuits and other low testosterone drug lawsuits have been filed on behalf of former users of these prescription medications.
In June 2014, the U.S. JPML decided to centralize cases filed throughout the federal court system as part of one testosterone MDL, which has been consolidated before U.S. District Judge Matthew Kennelly in the Northern District of Illinois for coordinated pretrial proceedings.
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.
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.
The Testofen cases are unrelated to the litigation filed over prescription testosterone drugs.