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For about a year-and-a-half now, federally filed testosterone therapy treatment lawsuits have been proceeding in the centralized litigation in Northern District of Illinois. About 3,500 cases are currently pending there, with most claiming that products like AndroGel, Testim, Androderm, and Axiron caused unexpected and dangerous side effects, like blood clots, heart attacks and strokes.

Earlier in the litigation, U.S. District Judge Matthew Kennelly determined that the cases that will go to trial first must involve claims concerning AndroGel, since it is the most popular testosterone drug on the market, and the most commonly listed testosterone therapy drug in the testosterone replacement lawsuits. Both parties have been working on a “bellwether schedule,” which outlines the time needed to complete each task prior to commencement of the actual trials, and sets appropriate deadlines.

Originally, six cases were scheduled to go to trial between October 2016 and April 2017. Because of continuing arguments between the parties, however, the dates have now been pushed back to between April and November 2017.

Judge Allows for Some Extension of Deadlines

Early “bellwether” trials help the parties gauge how juries may respond to the evidence and testimony presented at trial. Since the evidence is often similar at subsequent trials, these early cases can help facilitate negotiations between the parties, and often accelerate resolution of the litigation.

There have been delays in approving a final bellwether schedule, however, because the parties presented opposing plans for that schedule. In November 2015, the plaintiffs requested an additional 90 days to complete core discovery. Defendants, however, requested up to an additional year to get everything done to complete the bellwether process.

Judge Kennelly issued a court order on December 10, 2015, which finalized the bellwether schedule. He rejected the proposal by defendants AbbVie (manufacturers of AndroGel) requiring up to an additional year of time. More specifically, AbbVie wanted to split the discovery process into two phases: 1) expert discovery, and 2) summary judgment. Judge Kennelly stated that such a split was unnecessary, adding that the Court was not convinced that “there is a fair, efficient, and reasonable way to adopt AbbVie’s proposal in a way that makes the overall MDL proceeding manageable.”

He did, however, allow for an extension of some deadlines in the bellwether process, as proposed by the defendants, in the interest of maximizing the likelihood that the “bellwether selection and trial process will be both representative and productive.”

Judge Establishes New Testosterone Replacement Trial Schedule

As a result, the new schedule requires the parties to complete core discovery for the 32 cases in the discovery pool by May 23, 2016. Then, on or before June 7, 2016, the parties will submit their proposals for the selection of the initial bellwether trial cases. By June 24th, the court will select up to 12 cases to serve as the first cases and will set the order in which they will go to trial.

Additional discovery will then be completed by August 8, 2016, with depositions of expert witnesses to be completed by December 2, 2016. Any motions for summary judgment are to be filed by January 6, 2017, and the court will rule on those by March 24, 2017.

The new bellwether trial dates are now as follows:

  • April 21, 2017
  • June 5, 2017
  • July 10, 2017
  • August 21, 2017
  • September 25, 2017
  • November 6, 2017

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