Testosterone Trial Schedules Proposed by Parties in MDL

As attorneys involved in the federal testosterone drug lawsuits prepare to meet with the U.S. District Judge presiding over the litigation later this week, competing proposals have been submitted regarding potential schedules for preparing the first cases for early trial dates.

In June 2014, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established centralized all Androgel lawsuits, Testim lawsuits, Axiron lawsuits and other claims involving injuries associated with the use of testosterone gels, creams, patches or injections, regardless of the manufacturer involved in the case.

Cases filed in U.S. District Courts nationwide are being transferred to Judge Matthew F. Kennelly in the Northern District of Illinois for coordinated pretrial discovery and a series of bellwether trials to help the parties gauge how juries may respond to certain evidence and testimony that may be introduced throughout the litigation

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.

Competing Trial Plans for Testosterone Lawsuits

In advance of a status conference scheduled before Judge Kennelly on Friday, attorneys representing plaintiffs and the drug makers have submitted competing proposals regarding the case management schedule that should be adopted by the court to prepare a small group of cases for early trial dates. However, there is very little common ground between the two proposals.

A proposed plan submitted by plaintiffs (PDF) calls for the first testosterone trials to begin as early as June 2016. However, the plan submitted by the drug makers (PDF) urges the court to adopt a much longer pretrial schedule, which may delay the start of the first trials until at least late 2017.

The plaintiffs are proposing an initial series of six testosterone drug bellwether trials, which would take place between June 15, 2016 and January 31, 2017, allowing for a four-month period between April 2015 and August 2015 for bellwether fact discovery to be completed while discovery into generic liability issues are ongoing.

“Despite the fact that this general framework is almost always agreed upon between the parties negotiating case management plans, over the past few weeks Defendants have flatly rejected this typical discovery plan and trial schedule without offering any valid basis for doing so,” wrote attorneys appointed to leadership roles for the plaintiffs in the MDL.

Defense attorneys for the drug makers are calling for Judge Kennelly to first address general causation on the link between testosterone and heart problems, indicating that there is not enough scientific evidence to support the plaintiffs claims and arguing that low testosterone levels may be the cause of the injuries.

“The efficiencies to be gained by addressing general causation first are obvious,” wrote the Defendants in their proposal. “If Plaintiffs fail to offer reliable expert testimony regarding general causation, these cases will be over without the need for the parties or the Court to expend any further time or resources. Or if the Court finds that there is reliable expert testimony regarding general causation for some injuries but not others, the parties will know what types of plaintiffs to include in the bellwether pool and what types of plaintiffs to exclude.”

The Defendants’ proposed schedule does not call for the first trial to begin for another 36 months.

Plaintiffs are urging Judge Kennelly to reject this lengthy trial plan in the testosterone litigation, maintaining that it will significantly delay the right to a jury trial, as well as increase the necessary expenses associated with pursuing the cases and generally cause inefficiencies.

“[I]t is undeniable that the Defendants’ Unified Case Management Plan wholly prejudices Plaintiffs, who under this plan would be forced to wait over three years before the first trial was to occur (and even then, the defense only allots for two trials), and forces a disjointed inefficient overall discovery schedule,” wrote Plaintiffs in their proposal. “There is simply no reason for this obstruction to the Plaintiffs’ pursuit of justice when the parties are perfectly capable of conducting concurrent discovery, and thereby shortening the time to trial by approximately a year.

Testosterone Litigation

According to a joint agenda (PDF) submitted on October 17, the status of a unified case management plan is expected to be discussed during a conference scheduled for October 24. In addition, the parties have asked that the court review the status of deposition protocal, direct filing of cases into the MDL, a preservation order, coordination of the federal litigation with state court cases and other pretrial matters.

There are currently at least 223 lawsuits pending in the testosterone drug litigation pending before Judge Kennelly in the MDL, according to the latest update (PDF) released by the U.S. JPML on October 15. However, as testosterone injury lawyers continue to review and file cases over the coming months and years, it is ultimately expected that several thousands lawsuits will be brought on behalf of individuals throughout the United States.

The cases are centralized before Judge Kennelly for coordinated handling during pretrial proceedings 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.

In complex pharmaceutical litigation, where a large number of lawsuits have been filed involving similar injuries associated with the same or similar medications, it is common for a series of “bellwether” trials to be scheduled in the MDL to help the parties evaluate the relative strengths and weaknesses of their cases.

While the outcomes of these early trial dates are not binding on other cases, they may facilitate negotiations to settle testosterone drug injury cases by the manufacturers, avoiding the need for hundreds of individual cases to be set for trial in courts throughout the country.