Fortesta and Testim Lawsuits to be Selected for Additional Bellwether Trials in Testosterone Litigation

With more than 6,000 product liability cases pending throughout the federal court system over injuries alleged caused by side effects of testosterone replacement therapy, the U.S. District Judge presiding over the litigation has outlined the process for selecting certain cases involving specific drugs, which will be prepare for early trial dates.

Since June 2014, all testosterone drug lawsuits filed throughout the federal court system, regardless of the specific medication used, have been centralized before U.S. District Judge Matthew F. Kennelly in the Northern District of Illinois.

Known as a federal MDL, or Multi-District Litigation, the process is designed to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different courts and to allow the parties schedule a series of “bellwether” trials, to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

A series of eight Androgel lawsuits are already scheduled to go to trial in the second half of 2017, as that is the most widely used testosterone replacement therapy. Those cases were identified last month, from an original pool of cases selected last year to go through the case-specific discovery process.

In addition, Judge Kennelly established a process last month, which calls for two Axiron lawsuits to be prepared for trial dates on January 29 and March 7, 2018. Those cases will be chosen from a group of 80 cases filed against Eli Lilly, which were randomly selected last week. By November 1, the parties are expected to narrow this list down to a group of 16 cases, which will go through case-specific discovery, before they are later reduced to two cases that will go before juries.

In new orders issued last week, Judge Kennelly announced that additional bellwether pools will be established to prepare a group of Testim lawsuits and Foresta lawsuits for early trial dates, as well.

A random pool of 60 Testim cases will be identified by September 23, according to a case management order (PDF) issued on Friday. Those cases will then be narrowed down to to a group of eight bellwether claims, with each side selecting four cases by October 31, 2016. Fact discovery and expert discovery will then be completed in those cases, with the first trial currently scheduled to begin by November 1, 2017.

A random pool of 50 Foresta cases will be identified by July 14, 2017, according to another case management order (PDF) issued on Friday. Those cases will then be narrowed down to six bellwether claims, including three selected by each side, which will go through case-specific discovery and expert discovery, and the first Foresta trials are scheduled to begin by September 10, 2018.

While the outcomes of these early trial dates will not be binding on other cases in the litigation, they will be closely watched by parties involved, and may influence eventual testosterone drug settlements that may be reached to avoid the need for thousands of individual cases to go to trial nationwide.