Testosterone Lawsuits Can Now Be Directly Filed in Federal MDL

As a growing number of testosterone drug lawsuits filed in U.S. District Courts throughout the country continue to be transferred into the recently established federal multidistrict litigation (MDL), the judge presiding over the coordinated pretrial proceedings has issued a new order allowing direct filing.

In June 2014, the U.S. Judicial Panel on Multidistrict Litigation (JPML) assigned U.S. District Judge Matthew Kennelly to oversee all Androgel lawsuits, Testim lawsuits, Axiron lawsuits and other federal claims involving injuries associated with “low T” gels, creams, patches or injections that have been used by millions of Americans.

According to the latest case list (PDF) released by the JPML on October 15, at least 223 testosterone lawsuits filed in federal courts throughout the country have been transferred to Judge Kennelly in the Northern District of Illinois, to reduce duplicative discovery into common issues, avoid conflicting rulings from different judges and to serve the convenience of the parties, witnesses and the courts. However, as testosterone injury lawyers continue to review and file cases in the future, it is ultimately expected that thousands of lawsuits will be filed nationwide.

In a case management order (PDF) issued on October 24, Judge Kennelly established a process for direct filing of new cases in the testosterone MDL, which is designed to eliminate potential delays associated with transferring cases from other District Courts and to avoid potential inefficiencies with regard to motions that may be filed over federal subject matter jurisdiction in the cases.

Status of the Federal Testosterone Litigation

The MDL proceedings are designed to centralize all testosterone lawsuits filed throughout the federal court system, regardless of which specific medication was used and which drug makers are involved in the case.

All of the complaints involve similar allegations that side effects of testosterone drugs caused users to suffer a heart attack, stroke, pulmonary embolism, deep vein thrombosis (DVT) or other injury that may have been avoided if the drug makers had provided stronger warnings with the medications.

Such coordinated pretrial proceedings are common in complex pharmaceutical litigation, where a large number of cases are brought by individuals throughout the country who suffered similar injuries following the use of related medications or medical products.

As the number of cases in the testosterone MDL continues to grow, Judge Kennelly will oversee the coordinated discovery, challenges to the admissibility of expert testimony and other pretrial motions in the lawsuits. It is also expected that a small group of testosterone cases will be selected for early trial dates in the MDL, known as “bellwether” cases.

Earlier this month, the parties each submitted competing proposals regarding the testosterone bellwether process, with plaintiffs calling for the first cases to go before juries by mid-2016 and the drug makers pushing for a longer pretrial process, where the first cases may not go to trial until late 2017.

While the outcomes of these bellwether trials will not be binding in other cases, the process is designed to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

Following a series of test trials in the MDL, if testosterone settlements are not reached by the manufacturers to resolve large numbers of cases, hundreds of individual lawsuits centralized in the MDL may be remanded back to the U.S. District Courts where they would have originally been filed for separate trial dates throughout the country.

In the direct filing order, Judge Kennelly established the rules regarding the proper venue or jurisdiction for cases in the event that pretrial proceedings are concluded and each case needs to be remanded for trial.

For all cases filed only against the drug makers AbbVie or Abbott Laboratories, whose Androgel product is the most widely used testosterone replacement therapy, Judge Kennelly has indicated that they will be treated as if originally filed in the Northern District of Illinois, and those drug makers will be precluded from seeking remand of the cases to another Court for trial.

In all complaints that include drug makers other than AbbVie or Abbott as defendants, Judge Kennelly indicates that the case will be treated as if it was originally filed in the federal district where the Plaintiff resided at the time of the original filing. However, the parties may later challenge the appropriate venue or jurisdiction at the time the MDL Court indicates that it intends to remand the claims.

With the approval of direct filing of testosterone lawsuits in the MDL, it is expected that the number of new claims brought in the coming weeks and months will increase dramatically, as there are currently thousands of unfiled claims where men who suffered a heart attack or other injury while taking a testosterone drug have already retained lawyers.