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On the Road to a Testosterone Therapy MDL—One Drug Maker Opposed

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On January 31, 2014, the FDA announced they were investigating the safety of testosterone therapy drugs. Studies had linked these drugs to an increased risk of stroke, heart attack, and death. Since then, many men who took testosterone replacement therapy and experienced serious side effects have filed lawsuits against manufacturers like AbbVie and their parent company, Abbot Laboratories (AndroGel); Auxilium Pharmaceuticals (Testim); Actavis, Inc. and Watson Pharmaceuticals (AndroDerm).

With nearly 75 cases now pending in federal court, there’s now talk of centralizing all of them into one court to increase efficiency of pre-trial proceedings. One group of plaintiffs has already filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to centralize all AndroGel lawsuits. On April 11, 2014, plaintiffs in Barrios v AbbVie Inc. filed a second motion, supporting consolidation of all lawsuits dealing with testosterone replacement drugs, regardless of the brand or manufacturer.

So far, it seems most drug makers are in favor of consolidation, but some remain opposed.

Most Parties Agree to Consolidation in Illinois

In a response dated April 25, 2014, defendants AbbVie, Inc.; Abbot Laboratories; Eli Lilly and Company; Lilly USA LLC, and Endo Pharmaceuticals stated they agreed to centralization, and preferred the Northern District of Illinois as a location. They note that all cases involve one or more common questions of fact, and that centralization would “promote the just and efficient conduct of these actions.”

The Northern District of Illinois is seen as the best location for a potential MDL for the following reasons:

• 76 percent of all pending cases so far are already consolidated there
• It’s preferred by most parties
• It’s where cases have progressed the furthest
• AbbVie and Abbot Laboratories are headquartered there—they make AndroGel, which has the leading share of the U.S. testosterone replacement market
• The court is centrally located and easily accessible
• The court has proven its ability to handle MDL litigation

Other potential locations include the Eastern District of Louisiana (six cases pending there so far), the Eastern District of Pennsylvania (two defendants located there), and the District of Colorado (only one case).

The defendants add that Judge Matthew F. Kennelly of the Northern District of Illinois “should receive the centralized cases” because of his experience, and because he was assigned the first of the testosterone therapy cases.

Testim Manufacturer Opposes MDL

On the same date as the above response, defendant Auxilium Pharmaceuticals (Testim) filed their thoughts, stating they opposed a testosterone replacement therapy MDL. They argued that so far, only seven federal cases have been filed concerning their product, and as such, individualized issues about plaintiffs, defendants and physicians would be more significant in their cases. They didn’t disagree with the proposed MDL for AndroGel, but stated that lumping their product in with the others would be unfair. Should the panel agree to the MDL anyway, Auxilium stated that the Northern District of Illinois would be the best venue.

The other defendants disagree with Auxilium’s position, arguing that if only the AndroGel cases are centralized, those defendants who are also co-defendants in some of Auxilium’s cases would have to litigate in both the AndroGel MDL and in other courts with non-AndroGel cases. “The benefits and efficiencies of an MDL would be lost for those defendants and the plaintiffs in those cases,” the response reads.

Oral arguments on the potential AndroGel MDL will be heard on May 29, 2014, in Chicago.