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Jury Punishes AbbVie for False Advertising in First MDL Verdict

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In June of 2014, the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated all federally filed testosterone-replacement therapy (TRT) lawsuits into one court in the Northern District of Illinois. District Judge Matthew Kelley decided early on that trials would be scheduled based on the type of TRT product used. Since AbbVie’s product AndroGel leads the market in testosterone-replacement products, the first bellwether trials each involve AndroGel.

In the second case to be tried, a Chicago jury determined that manufacturer AbbVie should pay $150 million to an Oregon man who suffered a heart attack after taking the drug.

Chicago Jury Holds AbbVie Liable for False Marketing

The plaintiff first started taking AndroGel in 2008, and used it through 2012. He suffered a heart attack that year, at 49 years old. He claimed that AbbVie failed to warn of the risks associated with their drug, which he claims include blood clots, heart attacks, and strokes. He also claimed that the company misled consumers when they aggressively advertised the drug as a solution for age-related “low-T.”

The jury came back with a split verdict. They awarded the plaintiff $150 in punitive damages, stating that AbbVie was liable for false marketing and fraudulent misrepresentation. At the same time, however, they concluded that the plaintiff’s heart attack was not caused by AbbVie’s negligence, and did not award him any compensatory damages.

AbbVie blamed the plaintiff’s heart attack on other risk factors, including high blood pressure and cholesterol, obesity, and smoking. The company is expected to appeal the verdict.

Other Juries May React Similarly

This is only the second of seven planned bellwether trials to go to a jury. (An earlier trial ended in a mistrial, and is expected to begin again in September.) The consolidated litigation includes about 4,000 lawsuits, with all plaintiffs claiming that the manufacturers failed to warn of cardiovascular and blood-clot-related risks.

Even if the verdict doesn’t stand, it sends a powerful message to AbbVie, and shows that juries will likely react unfavorably to AbbVie’s aggressive million-dollar advertising campaign. The company marketed the drug as an effective treatment for “low-T,” which it described as a condition with the same symptoms of normal male aging, like fatigue, muscle loss, and drop in libido.

The FDA, however, approved testosterone replacement only for medically diagnosed low testosterone, or “hypogonadism.” Studies have shown that many of the men who were convinced to take the drug never had a single testosterone test to diagnose any medical condition.

In 2014, for example, researchers reported that 40.2 percent of U.S. men did not have a testosterone test in the 180 days before beginning therapy, and 50 percent had only one test (doctors usually conduct at least two to get an average reading).

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