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Testosterone MDL Gets Closer to Selecting Final Bellwether Cases

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Federally filed testosterone replacement lawsuits have been in centralized litigation in the Northern District of Illinois now for over two years. Parties have been working toward selecting a small number of AndroGel cases that would serve as “test” or “bellwether” trials. These cases would go to trial first, before the rest, to see how juries will react to the evidence.

Recently, the parties proposed 14 cases that they believe would serve as representative of all. District judge Matthew F. Kennelly, however—who is overseeing the proceedings—has expressed concerns over some of these cases, as to their suitability as initial bellwether trials.

Each Side Submits Cases They Believe Best Represent the Whole

Judge Kennelly initially determined that all bellwether trials would involve cases stemming from the use of AndroGel, the top selling testosterone replacement product on the market. Since the majority of the over 5,500 cases involved in the litigation involve AndroGel, it was decided that it would be best to start with these cases first, before getting into some of the others involving Testim, Axiron, Androderm, Depo-Testosterone, and others.

On July 25, 2016, both the plaintiffs and the defendants submitted lists of cases that they believed would be suitable for the initial trials. These were chosen from a previous pool of 24 cases. So far, the court has set a goal of 6-8 final bellwether cases that will be among the first to go to trial.

The plaintiffs listed six of what they stated were the most “representative” cases, as well as their reasons for not selecting the other 18. The defense proposed that the court select eight cases for bellwether trials, but then selected six, and explained their reasons for excluding the rest.

Cardiovascular or Clot Injuries, or Both?

Both parties discuss the fact that there are two main categories of cases: those that involve claims of cardiovascular injury, such as heart attack and stroke; and those that involved claims of blood clot injuries, such as deep vein thrombosis and pulmonary embolism.

The plaintiffs suggest that cases involving cardiovascular injuries—specifically heart attack—should be tried first, since this type of injury “overwhelmingly predominates” all cardiovascular injuries claimed, and since cardiovascular injuries outnumber blood clot injuries.

The defendants suggest that the court select eight trial bellwether cases, and proposes that they be split between cardiovascular and clot cases.

Final Case Selections to be Completed in August

Judge Kennelly submitted a docket entry on July 26, 2016, in which he stated that he had reviewed the submissions from both sides, but that he had questions regarding the cases selected, as well as those that were not selected.

To iron out these issues, he scheduled a hearing on August 3, 2016, with the goal of creating a final list of bellwether trials on August 5th.  The actual trials are expected to begin in July 2017.

Plaintiffs who took testosterone therapy and then suffered from side effects like heart attack, stroke, and blood clots, claim that the manufacturers failed to provide adequate warnings as to these risks, and also that they failed to conduct proper safety testing before releasing these products on the market. They also accuse the manufacturers of aggressively advertising their products to the point of making typical symptoms of aging appear like symptoms of testosterone decline.