CHICAGO — North Chicago-based drugmaker AbbVie has asked a federal judge to toss out a $140 million verdict against it for allegedly mismarketing its testosterone replacement therapy drug, Androgel. And in the view of a Chicago attorney whose practice focuses on Supreme Court and appellate cases, as well as class actions, there is "no chance" that judgment will be allowed to stand.
The verdict, imposed by a federal jury in Chicago, awarded $140 million in punitive damages to plaintiff Jeffrey Konrad, who claimed that AbbVie's drug AndroGel caused him to suffer a heart attack after he and his doctor were allegedly misled by AbbVie's marketing of the drug. The jury decided that they could not hold the drug responsible for his heart attack, but still held the company had misrepresented and concealed the drug’s side effects from the public .
Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois in Chicago, who was assigned this case under a massive multi-district litigation against AbbVie and other makers of testosterone therapy drugs, has been asked by AbbVie to toss out the punitive damage award or order a new trial.
"There is no chance that the punitive damages portion of the judgment will stand," Evan M. Tager, an attorney and partner at the firm of Mayer Brown in Chicago, told the Cook County Record. "The punitive damages are 1,000 times the compensatory damages. The Supreme Court has made clear that a ratio of that magnitude is unconstitutional except in cases of truly small compensatory damages.”
Although Illinois has not set a clear guidelines for what constitutes an excessive punitive damage award, the Illinois Supreme Court established in Deal v. Byford that a reviewing court can “not disturb an award of punitive damages on grounds that an amount is excessive unless it is apparent that the award is a result of passion, partiality or corruption.”
A lot will turn on how Kennelly handles this question, Tager said.
“If Judge Kennelly concludes that the jury was animated by passion and prejudice, that should mean that the entire verdict is infirm and that AbbVie should receive a new trial on all issues," he said. "If Judge Kennelly concludes that the jury impermissibly sought to punish AbbVie for the full effects of its alleged non-disclosure, he should order a new trial on punitive damages because there is no way to know what amount of punishment (if any) the jury would have imposed solely for the harm to this plaintiff."
Tager believes the punitive damage portion of AbbVie’s case will be thrown out, and what happens next depends on Kennelly’s rationale for throwing them out.
“I think that the maximum permissible ratio in this case is likely to be 1-1 or lower," he said. "If Judge Kennelly orders a new trial on all issues, I would expect that a second jury could award more in compensatory damages.”
As it awaits a ruling on its request in the Konrad case, AbbVie has also similarly challenged a $150 million award granted to a plaintiff in a similar case over Androgel. The two cases had been selected by the judge to proceed as "bellwether" trials to give the court some idea of the chances plaintiffs in the hundreds of other cases could have at succeeding in court.
Representing the plaintiffs in the bellwether trials are the firms of Seeger Weiss LLP, of New York; Simmons Hanly Conroy, of Alton; Meyers & Flowers, of St. Charles; Heard Robins Cloud, of Santa Monica, Calif.; Beasley, Allen, Crow, Methvin, Portis & Miles, of Montgomery, Ala.; and Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, of Pensacola, Fla.
Abbvie is defended by Dechert LLP, of Chicago and Philadelphia, and Paul, Weiss, Rifkind, Wharton & Garrison, of New York.