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Plaintiffs Claim AbbVie Delaying Proceedings in Testosterone MDL

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In June of 2014, the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated all federal testosterone replacement therapy lawsuits into one court in the Northern District of Illinois, with U.S. District Judge Matthew Kennelly overseeing the proceedings.

Currently, in preparation for bellwether trials scheduled to begin in 2016, the parties are involved in the discovery process. According to a recent motion, however, there is a dispute concerning the release of important documents, with plaintiffs accusing defendants of delay tactics meant to protect their own interests.

Plaintiffs Claim Defendants Using Delay Tactics to Avoid Producing Documents

In a memo in support of the plaintiffs’ motion to compel, plaintiffs seek an order compelling manufacturer AbbVie to produce documents in three distinct areas:

1. Documents apparently illustrating aggressive marketing: Plaintiffs requested documents produced and transcripts of depositions taken in the case, United States ex rel. King v. Solvay S.A., the so-called “King” documents. These allegedly show that AbbVie aggressively marketed their testosterone drugs for off-label use, and that they were involved in kickback schemes with AndroGel and two other medications.
2. Copy of the AndroGel adverse event database: Plaintiffs claim they are entitled to conduct their own analysis of all adverse events that have occurred in patients taking AndroGel. AbbVie has stated it refuses to produce the information for “adverse events that are not of the type alleged in complaints filed in this litigation.” Plaintiffs claims the information is relevant to determine when the company became aware of the side effects associated with AndroGel.
3. Responses to plaintiffs’ requests that AbbVie had sidestepped: The plaintiffs claim that AbbVie has invoked Federal Rule of Civil Procedure 33d as a response to 64 of the plaintiffs’ 100 requests for information. They add that the pervasiveness of these responses “combined with the staggeringly small volume of documents that have been produced to date, constitutes an egregious abuse of the discovery process.”

The plaintiffs go on to state that AbbVie has repeatedly stated they will produce the documents “subject to clarification and a meet and confer regarding the scope” of the plaintiffs’ requests. These requests have resulted in unacceptable delays, the plaintiffs complain.

They add that despite their efforts to resolve the issue with the defendants, the materials have not been produced, so plaintiffs have turned to the court for help. They ask that the court enter an order compelling AbbVie to provide the documents mentioned in the motion within 15 days.

Defendants Submit a Response to Motion to Compel

On February 6, 2015, AbbVie filed a response to the plaintiffs’ motion to compel. They state that the plaintiffs’ motion is “without factual or legal basis and should be denied.” The defendants claim they have tried to resolve disputes with the plaintiffs, without success.

They respond to the three main areas of requests as follows:

1. King documents: AbbVie claims the King case shares not a single cause of action with the current cases in the testosterone MDL, and that the claims and allegations between the cases are quite different. They add that they proposed to “review and produce relevant documents” within a reasonable time frame, but the plaintiffs rejected this “reasonable compromise.”
2. Adverse event database: AbbVie claims that much of this information has nothing to do with the injuries alleged in the MDL, which are “limited to strokes, heart attacks, and blood clots.” Data regarding ankle fractures, flatulence, animal bites, and more are irrelevant to the plaintiffs’ claims, AbbVie states. They add that they tried to resolve the issue by producing “substantial additional data,” but that plaintiffs rejected this proposal.
3. Sidestepping: AbbVie states that the plaintiffs have served 522 interrogatories, and that AbbVie has “done its best to respond to this overbroad written discovery” in a reasonable fashion, but that the plaintiffs are “operating well outside of the federal rules regarding discovery.”

The defendants conclude that the court should deny the plaintiffs’ motion to compel, and instead, allow AbbVie more time to review and redact documents to produce only relevant material to the plaintiffs.

Over 1,000 Cases and Climbing

On February 20, 2015, the parties met for a status conference. So far, about 1,100 cases are pending in the MDL, with about 700 of those involving claims against AndroGel and AbbVie.