Judge orders new trial, tosses $140M verdict vs AbbVie over Androgel testosterone drug

By Jonathan Bilyk | Jul 5, 2018


A federal judge has knocked down a $140 million verdict against pharmaceutical maker AbbVie, ordering a new trial over a man’s claims AbbVie’s Androgel testosterone replacement therapy drug caused him to suffer a heart attack.

On July 5, U.S. District Judge Matthew F. Kennelly found the jury deliberating over the case had erred, reaching conflicting decisions in awarding the verdict to plaintiff Jeffrey Konrad.

“The verdicts on these claims are inconsistent under the instructions given to the jury,” Kennelly wrote in ordering a new trial. “When this happens, the Court cannot accept one of the two inconsistent verdicts while discarding the other; both of them have to go.”

Last October, a Chicago federal jury ordered AbbVie to pay $140 million to Konrad, of Tennessee, saying they believed the company should be made to pay for allegedly misleading doctors and patients, like Konrad, into believing Androgel was safe and effective when used to treat a condition known as “andropause,” or an age-related drop in testosterone levels.

The jury, however, split on two counts related to AbbVie’s liability in the matter. On one hand, the jury said it believed the evidence did not allow them to conclude Androgel directly caused a heart attack Konrad suffered a few weeks after he began using the drug. However, jurors found AbbVie could be considered negligent for its promotion of the drug to doctors and the public, and its alleged failure to warn of the drug’s risks, allegedly tied to an increase in the risk of developing cardiovascular health problems, including heart attacks.

At the same time, the jury also ruled against AbbVie on the question of whether the company had falsely marketed the drug, and ordered the company to pay the large sum in punitive damages.

Following the verdict, AbbVie asked the court to enter judgment in its favor, asserting the jury had erred in reading the evidence. Alternatively, the company asked the judge to order a new trial, saying the split verdict was legally inconsistent, and invalidated the entire judgment.

The verdict had come at the end of the second in a series of so-called bellwether cases selected by Kennelly for trials amid a massive wave of thousands of lawsuits against AbbVie and other drugmakers, including Eli Lilly and GlaxoSmithKline, over alleged health problems caused by Androgel and similar testosterone replacement drugs.

The thousands of complaints have been consolidated in federal court, and assigned to Kennelly to unwind.

The lawsuits, dating to 2014, alleged the testosterone drugs are not only useless, but harmful. While the drugs were approved by the U.S. Food and Drug Administration to treat testosterone deficiencies, the lawsuits alleged the companies also falsely marketed the drugs to treat a variety of other conditions, including diabetes, AIDS, cancer, depression and anxiety. The lawsuits further allege the drugmakers invented a nonexistent condition called andropause, or “low T” – also referred to as “age-related hypogonadism” – which could be treated by using the drugs.

However, plaintiffs claim the drugs cause blood clots, increasing the risk of heart attack and stroke.

To gauge how juries would respond to the claims, the judge selected eight of the case to move forward to trial.  In July 2017, a jury awarded another plaintiff, Jesse Mitchell, $150 million. However, that award was also undone after the judge found inconsistencies in that verdict, as well.

In his most recent July 5 ruling in the Konrad case, Judge Kennelly rejected AbbVie’s assertions concerning the lack of evidence, saying he did not believe a jury would be unreasonable to use the evidence submitted to conclude AbbVie could be held liable.

However, the judge said in this case, the jury had violated their instructions concerning how to deliberate, and had attempted to split legal hairs in determining AbbVie should pay for being negligent in its promotion of Androgel, even if the jury was not certain the evidence indicated the drug had caused Konrad’s 2010 heart attack.

And the judge brushed aside the plaintiffs’ attempt to preserve their big payday, saying he could not allow the new trial to be limited only to reconciling the inconsistent findings on liability and negligence.

“In this case, one of the key disputed issues was causation, specifically whether AndroGel cased Konrad's heart attack. The jury was given a single causation instruction that covered all of the claims,” Judge Kennelly wrote.

“Thus the issue of causation on the two claims that have to be retried due to the inconsistency of the jury's verdicts is anything but ‘distinct and separable’ from the issue of causation on the misrepresentation claims. For this reason, the Court concludes, it would be impossible to limit a new trial to the inconsistent claims ‘without injustice.’"

The ruling is another in a string of wins for AbbVie in the testosterone drug litigation. In June, a Chicago jury found AbbVie not liable for any of the medical conditions plaintiff Robert Rowley claimed Androgel had caused him to suffer. The jury also decided AbbVie’s marketing of Androgel, and the product’s labeling, was not deceptive, and did not constitute fraud.

In trials in January and May, juries similarly found in favor of AbbVie on all counts.

Published reports indicate Eli Lilly, Endo, GSK and Auxilium Pharmaceuticals have agreed to tentative settlements to end much of the testosterone replacement therapy drug-related litigation against them.

The plaintiffs in the testosterone replacement drug bellwether trials are represented by a number of attorneys from multiple firms, including 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 the firms of Dechert LLP, of Chicago and Philadelphia, and Paul, Weiss, Rifkind, Wharton & Garrison, of New York.

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Organizations in this Story

Abbvie Beasley Allen Crow Methvin Portis & Miles PC Dechert LLP Heard Robins & Cloud LLP Levin, Papantonio, Thomas, Mitchell, Meyers And Flowers Paul Weiss Rifkind Wharton and Garris Seeger Weiss LLP Simmons Hanly Conroy U.S. District Court for the Northern District of Illinois

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