David Bernick, a partner with Paul, Weiss, Rifkind, Wharton & Garrison.

 

A $150 million verdict might sound better than one worth $140 million. But for the attorneys who won the first trials over low-testosterone medications, it was not.

On Oct. 5, a federal jury in Chicago awarded $140 million against AbbVie and Abbott Laboratories over claims that their low-testosterone gel caused a man to suffer a heart attack.  It was the second major plaintiffs’ victory to come out of roughly 6,000 lawsuits brought over low-testosterone medications in federal court. But unlike the first award, of $150 million on July 24, this month’s verdict included $140,000 in compensatory damages.

It’s a significant distinction for the plaintiff’s attorneys, who have moved to amend the earlier judgment so that the award for their client, Jesse Mitchell, would include $136,408 in medical bills.

“The jury found AbbVie is liable to Mr. Mitchell for causing his heart attack, yet the jury did not award him any damages for the medical bills associated with the heart attack,” wrote Trent Miracle, a shareholder at Simmons Hanly Conroy in Alton, Illinois, in an Aug. 21 motion. The jury’s decision not to award compensatory damages was “clearly the result of an oversight” because “the jury was instructed that it had to find that Mr. Mitchell suffered an injury—a heart attack—before finding AbbVie liable.”

So why did $136,408 in medical bills matter? Because lawyers for AbbVie and Abbott have brought their own motion to strike the punitive damages, calling the entire award “manifest legal error.”

“The jury’s affirmative finding that plaintiff suffered zero compensatory damages necessarily means that plaintiff failed to meet his burden of proof on an essential element of his claim: that he was damaged,” wrote David Bernick, a partner at New York’s Paul, Weiss, Rifkind, Wharton & Garrison. “As a result there is no basis to support a judgment for the plaintiff.”

Both sides are set to respond to each other’s motions by Oct. 25.

Neither Miracle nor Bernick responded to requests for comment. Miracle has teamed up with Seeger Weiss partner David Buchanan, Troy Rafferty of Levin Papantonio Thomas Mitchell Rafferty Proctor in Pensacola, Florida, and Bill Robins of Robins Cloud in Santa Monica, California, on the plaintiff’s side. Along with Bernick, Abbott and AbbVie are represented by Michelle Yeary, counsel at Dechert in Princeton, New Jersey, and Paul Clement, a Washington, D.C., partner at Kirkland & Ellis.

In this month’s case, brought by Jeffrey Konrad, the jury found AbbVie and Abbott liable for negligence, intentional misrepresentation and misrepresentation by concealment. They found for the defense on strict liability. But in the Mitchell case, the jury found AbbVie and Abbott Laboratories liable on only one claim: fraudulent misrepresentation.

In a motion for judgment as a matter of law filed before the verdict, AbbVie and Abbott insisted that plaintiff’s attorneys had failed to prove that AndroGel caused Mitchell’s heart attack. After all, they argued, he had several other risk factors that could have contributed, such as a history of high blood pressure and smoking.

The judge has yet to rule on that motion.