Over two years ago, all federally filed testosterone replacement lawsuits were consolidated into the Northern District of Illinois. Since then, both sides have been working toward selecting a small number of cases to go to trial first. These are called “bellwether” trials and may provide insight into how juries will respond to the evidence. The outcomes may encourage settlement negotiations.

Early on, Judge Matthew F. Kennelly, who is overseeing the proceedings, determined that only cases involving the testosterone drug AndroGel would be included in these first trials. AndroGel is the highest selling testosterone replacement medication, and is the drug at issue in most of the testosterone replacement lawsuits pending in Illinois.

After months of going back and forth and gradually narrowing down a pool of cases, the court has finally determined the final eight cases that will go to trial.

Court Determines Eight Testosterone Replacement Lawsuits for Bellwether Trials

According to a case management order filed August 4, 2016, the court selected eight “AbbVie-only” cases for bellwether trials, AbbVie being the manufacturer of AndroGel. The court took into consideration arguments from both sides as to which cases best represented over 5,500 currently pending.

Four of the cases will involve plaintiffs who took AndroGel and then suffered a heart attack or stroke, and the other four will involve plaintiffs who took the drug and suffered a blood clot, such as deep vein thrombosis (DVT) or pulmonary embolism (PE).

One case on the list is contingent upon the deposition of the sales representative for an AbbVie-predecessor who visited the prescribing physician prior to that physician prescribing AndroGel to his patient. Plaintiffs so far have been unable to take that deposition because they’ve been unable to locate the representative. The court has given the defendants until August 19 to find him, and until August 31 to produce him for deposition. If they can’t meet this deadline, the case will be replaced with another that has already been identified.

The court also stated that the Konrad case (Case No. 15 C 966) will be the first to be tried, “assuming it survives until trial.” The order of the remaining cases will be determined at a later date.

The first trial is scheduled to begin in June 2017.

Plaintiffs Accuse Testosterone Manufacturers of Aggressive Advertising

Other drugs involved in the testosterone litigation include Axiron, Testim, Androderm, Depo-testosterone, and others. Patients typically allege that they took the drugs and then suffered serious cardiovascular and clotting side effects. They claim that the companies should have provided more adequate warnings as to the risks associated with the drugs, and should have conducted additional safety studies before releasing them on the market.

Plaintiffs also state that the manufacturers engaged in aggressive marketing campaigns in which they convinced men suffering from common symptoms of aging, including fatigue and muscle loss, that these were symptoms of “low-T” and that they should ask their doctors about a prescription. As a result, many men started taking the drugs without being tested for low testosterone levels.

In a 2014 study, for example, 40.2 percent of men did not have a testosterone test in the 180 days before beginning therapy, and 50 percent had only one test. (Doctors typically recommend more than one test to get a more accurate view of the actual testosterone levels.)