Jury finds drugmaker responsible for fraudulent misrepresentation

Payday

An Illinois jury handed plaintiffs $150 million in a case against AbbVie Inc. and Abbott Labs. Jesse Mitchell and his wife, Kimberly, an Oregon couple, sued the defendants after the companies’ testosterone replacement drug AndroGel allegedly caused Jesse’s severe heart problems. Mitchell claims that he decided to try AndroGel after seeing advertisements for the drug. Upon receiving a prescription from his doctor, he used it from 2008 until 2012, when his heart problems began.

Bellwether

The Mitchells’ complaint, filed in November 2014, is one of more than 7,000 brought by consumers alleging that widely marketed low-testosterone therapies led to harmful cardiac-related side effects. In 2014 the lawsuits, which include cases against Besins and Eli Lilly, were consolidated into a multi-district litigation (MDL) in the Northern District of Illinois. The Mitchells’ case against AbbVie is one of a handful of bellwether cases involving the drugmaker that have been identified by the court.

Common to the AbbVie cases is the accusation that the company engaged in misleading ads that preyed on the hopes and fears of middle-aged men. The advertisements included suspect tests for “Low T,” which lumped in the normal effects of aging with symptoms of actual low-testosterone disorders.

One Out of Three

The Mitchells specifically alleged that AbbVie failed to warn consumers of the dangers of using AndroGel and that the design of the drug was defective and unreasonably dangerous. They also accused AbbVie of negligence, fraud and negligent misrepresentation, seeking a variety of damages, injunctive relief and attorneys’ fees. At trial, their attorneys urged legal theories of strict liability, negligence and fraudulent misrepresentation.

The jury let AbbVie off the hook for the first two claims, failing to find that AbbVie’s conduct caused Mitchell’s medical woes. On the third count, the jury held the drugmaker liable for fraudulent misrepresentation related to the advertising campaigns launched by the company.

The Takeaway

Courts find bellwether cases to be a helpful tool for spotting and resolving certain issues common to a large number of lawsuits. The Mitchells’ case, along with the other low-testosterone bellwethers, will have an impact on the fate of the remaining litigation in the MDL.