A federal judge has vacated a $140 million verdict over “low testosterone” treatments after finding that the jury’s findings were inconsistent.
The Oct. 5 verdict was the second bellwether award to come out of multidistrict litigation alleging AbbVie Inc. and other companies misrepresented the safety of their topical gels used to treat low testosterone in aging men. About 6,000 lawsuits have alleged the treatments caused heart attacks and blood clots.
In an order on Thursday, U.S. District Judge Matthew Kennelly of the Northern District of Illinois concluded that the verdict was inconsistent because jurors found for the defendant, AbbVie, on strict liability but for plaintiff Jeffrey Konrad on negligence and misrepresentation claims.
“The verdicts on these claims are inconsistent under the instructions given to the jury,” Kennelly wrote. “When this happens, the court cannot accept one of the two inconsistent verdicts while discarding the other; both of them have to go.”
He also found that two other fraud claims—misrepresentation by concealment and intentional misrepresentation—couldn’t survive in light of his holding. He refused to grant AbbVie’s motion for judgment as a matter of law but vacated the entire verdict on a motion for new trial. He said a new trial would take place this fall.
Plaintiffs lawyer David Buchanan of Seeger Weiss in New York, lead counsel in the case, did not respond to a request for comment, nor did a spokeswoman for AbbVie, which was represented by David Bernick of New York’s Paul, Weiss, Rifkind, Wharton & Garrison. Bernick declined to comment.
The ruling is another setback for plaintiffs lawyers in the low-testosterone multidistrict litigation that also includes defendants GlaxoSmithKline plc, Eli Lilly and Co. and Auxilium Pharmaceuticals, a subsidiary of Endo Pharmaceuticals Inc., which have reached settlements.
So far in the multidistrict litigation, there have been six verdicts, all involving AbbVie and Abbott. In cases alleging heart attacks, the first verdict was for $150 million and the second for $140 million. A third, involving a blood clot, was a defense victory on Jan. 26 obtained by Kirkland & Ellis partner James Hurst. Two more trials ended in defense verdicts on May 15 and June 14.
Kennelly vacated the first verdict after finding that the jury’s award was inconsistent because it was all punitive damages. In a retrial, which was the sixth verdict, a new jury on March 26 awarded $3.2 million, which included $200,000 in compensatory damages.
In the second trial, Konrad, a Tennessee resident, claims he had a heart attack in 2010 after using AbbVie’s AndroGel for two months. The award included $140,000 in compensatory damages.
But under Tennessee law, claims for negligence and strict liability both require jurors to find that AndroGel was “unreasonably dangerous.” And plaintiffs attorneys failed to provide evidence of negligence outside of creating a defective product that caused Konrad’s heart attack, which the jury found AbbVie didn’t do.
“Konrad has not articulated any theory, supported by evidence, of how AbbVie’s breach of its duty of care could have been the cause in fact and legal cause of Konrad’s heart attack unless AndroGel itself was a cause in fact and legal cause of the heart attack,” Kennelly wrote.