Cook County Record

Tuesday, March 31, 2020

Judge denies class action status for insurer’s suit against AbbVie, others over testosterone drugs


By Dan Churney | Aug 9, 2018


A Chicago federal judge has barred an Ohio health insurer from pursuing a class action against several pharmaceutical companies, which are already embroiled in massive litigation over their testosterone drugs, saying the thousands of potential claims would be too individualized to be served well by a class action and the insurer’s drug review practices were “unconventional.”

The ruling from U.S. District Judge Matthew Kennelly favored a number of drugmakers, including AbbVie, Solvay, Besins, GlaxoSmithKline, Eli Lilly and Actavis, in a putative class action brought against them by Cleveland-based Medical Mutual of Ohio.

In 2014, MMO filed suit alleging they and more than 10,000 third-party payers were taken in by the companies’ “fraudulent marketing” that claimed their testosterone boosting drugs were safe and effective in treating several other conditions, such as erectile dysfunction, diabetes, cancer, AIDS, depression and obesity, as well as a non-existent ailment defendants called “Andropause” or “Low T.”

Far from treating these conditions, the drugs could allegedly cause circulatory and cardiovascular problems, such as heart attacks, strokes and blood clotting difficulties, according to MMO.

As a consequence of defendants’ alleged deceptions, MMO said it paid out $39 million in reimbursements to insureds between November 2001 and April 2015 for “unnecessary and unsafe” prescriptions.

MMO’s suit comes against the backdrop of suits from across the country against the drugmakers, which have been consolidated in Chicago federal court, from hundreds of plaintiffs who claim the testosterone drugs harmed them.

MMO wanted Judge Kennelly to permit it to pursue the suit as a class action, but Kennelly sided with defendants against the request, finding there was not enough uniformity among potential claims.

“MMO has not demonstrated that it can adequately represent the class. Evidence - on which MMO’s case depends - will necessarily vary from member to member. Individualized issues are not just present in this case, but rather loom large,” Kennelly said.

Further, Kennelly determined MMO cannot show they took into account defendants’ alleged deceptions in paying for the drugs, one reason being MMO didn’t require drug purchasers to obtain prior authorization from the insurer until late 2017 — three years after MMO filed its suit and almost four years after the U.S. Food and Drug Administration gave notice of concerns with the drugs.

“MMO will face significant hurdles in convincing a jury that it relied on defendants’ alleged misrepresentation and that the misrepresentations caused MMO’s injuries. A third-party payer that monitored its prior authorization procedures and its formulary (list of medicines) in a disciplined manner would be in a better position than MMO to represent itself and the putative class,” Kennelly said.

Kennelly was also not impressed with MMO’s apparent “unconventional pharmacy management practices.” As an example, Kennelly noted that for a number of years during the period in question, MMO did not annually review clinical information on drugs, which is generally done by health plans.

MMO is represented by the firms of Simmons Hanley Conroy, of Alton, Ill.; Kanner & Whiteley, of New Orleans; Golomb & Honik, of Philadelphia, Penn.; and Baron & Budd and Simmer Law Group, both of Washington, D.C.

The drug companies are defended by Patterson Belknap Webb & Tyler, of New York; Kaye Scholer LLP, of New York; Reed Smith LLP, of Los Angeles; Foley & Lardner LLP, of Boston; and Mayer Brown LLP, of Chicago.

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Organizations in this Story

Reed Smith LLPBaron and BuddPatterson Belknap Webb & TylerKanner & Whiteley LLCSimmer Law Group PLLCMedical Mutual of OhioArnold & Porter Kaye Scholer LLPU.S. District Court for the Northern District of IllinoisMayer BrownSimmons Hanley Conroy, LlpFoley and Lardner