North Chicago-based drugmaker AbbVie is resisting what it is calling a jury's “confused and inconsistent” $3.2 million verdict, after the company lost a second trial in Chicago federal court – one in which it was ordered to pay $147 million less than the first trial – over a man’s claims AbbVie allegedly failed to warn its product AndroGel could bring on a heart attack.
In July 2017, a jury awarded $150 million to Jesse Mitchell, finding AbbVie did not adequately warn Mitchell use of its testosterone replacement drug AndroGel could reduce or stop blood flow to part of the heart. Mitchell said he suffered a heart attack caused by AndroGel.
AbbVie moved to have the verdict tossed, which District Judge Matthew Kennelly agreed to do Dec. 22, ordering a new trial. That new trial ended March 26 with another verdict against AbbVie, but for only $3.2 million – $3 million in punitive damages, and $200,000 in “economic” and “non-economic” damages.
However, AbbVie submitted a motion April 23 calling for Kennelly again to overrule the verdict and enter judgment in the company's favor, or, if Kennelly cannot see his way to do that, to order another new trial or reduce damages.
AbbVie is contending the case was riddled with problems.
“Numerous deficiencies pervaded Plaintiff's claims and the trial, culminating in the jury returning a confused and inconsistent verdict. Plaintiff's negligence claim never should have even gone to the jury,” AbbVie said.
In both trials, the juries rejected plaintiff's claim of strict liability, while accepting his claim of negligence. AbbVie is arguing these divergent findings do not jibe, because of the “virtually identical issues” common to both claims.
AbbVie noted the U.S. Food and Drug Administration approved AndroGel and its labeling, and whatever the label warnings, plaintiff and his doctor said they didn't rely on the label in deciding to use and prescribe the drug.
AbbVie went on to contend plaintiff didn't show any reliable statistical relationship between testosterone replacement drugs and cardiovascular risk. Further, plaintiff didn't identify other risk possibilities, including his own “well-established” cardiac risk factors, as causes, if not the only causes, of his heart attack.
As far as damages, AbbVie argued punitive damages should not have been allowed, given plaintiff didn't demonstrate AbbVie knew Androgel posed a risk and disregarded that risk. In addition, the $3 million punitive damages violated due process, by “resting on allegations and evidence” not related to plaintiff's claims, AbbVie maintained.
The remaining $200,000 compensatory damages “went beyond” evidence introduced at trial, in AbbVie's view. In addition, the $3 million punitive damages exceeded limitations the court has applied in the past, the drugmaker asserted.
Even though the outcome of the second trial was a big improvement over the first one in the eyes of AbbVie, the company may still not be happy, because of what the verdict may portend.
The two trials have been the first in a series of bellwether trials involving thousands of class-action claims from across the country against Abbvie and other pharmaceutical companies, who produced testosterone replacement drugs similar to Androgel. The suits were consolidated and are being handled as a multi-district litigation before Kennelly in Chicago.
Judge Kennelly chose eight of the cases to move forward to trial, as a way to gauge how juries might respond.
The suits allege the drugs increased risks for heart attacks and other cardiovascular problems. According to plaintiffs, the drug companies allegedly played down or skipped over those risks when marketing their products, which were advertised as effective in treating a variety of conditions, including diabetes, AIDS, cancer, depression, anxiety and a condition called “andropause” or “low T.” The suits allege the drugmakers invented andropause and low T to boost sales.
Mitchell was represented by the following law firms: Levin Papantonio Thomas Mitchell Rafferty & Proctor, of Pensacola, Fla.; Simmons Hanly Conroy, of Alton.; the Alvarez Law Firm, of Coral Gables, Fla.; Seeger Weiss, of New York; Goldberg & Osborne, of Tucson, Ariz.; Heard Robins Cloud, of Santa Monica, Calif.; and Douglas & London, of New York.
AbbVie was defended by the firm of Dechert LLP, of Princeton, N.J. and Paul, Weiss, Rifkind, Wharton & Garrison, of New York.