Litigators of the Week: How Teamwork Allowed Plaintiffs' Lawyers to Pull Off a Nearly $300M AndroGel Double Header
“It definitely adds pressure to the situation when you achieve a home run your first time at the plate,” Seeger Weiss partner David Buchanan told The Litigation Daily of his win over a team from Paul Weiss and Dechert.
October 12, 2017 at 06:00 PM
4 minute read
You're a pinch-hitter at an away game—the second in a double header—and you're up to bat after the last pitch resulted in an eye-popping homerun. Six thousand are watching. Oh, and hundreds of millions of dollars are at stake.
That's somethings similar the situation that confronted Seeger Weiss partner David Buchanan on the eve of the latest trial over the testosterone replacement therapy AndroGel, which ended last week with a $140 million verdict in punitive damages against Abbott Laboratories spin-off AbbVie.
The case, Konrad v. AbbVie, was initially set to be tried in June as the first bellwether trial in multi-district litigation in Chicago federal court over testosterone replacement therapies including AndroGel.
Plaintiffs allege that the blockbuster drug causes heart attacks, strokes and other injuries, and that AbbVie in its marketing intentionally misrepresented it as safe and effective.
Instead, a mistrial was declared after Chris Seeger, the lead trial attorney in the case, began suffering heart problems. With Seeger out, Buchanan, who'd initially been set for a supporting role in the trial, was called up to replace his partner as the lead attorney.
In the time it took for the retrial to begin, Troy Rafferty, a shareholder at Levin Papantonio Thomas Mitchell Rafferty Proctor, won a $150 million award against the same defendant in what turned out to be the first bellwether case over AndroGel.
“It definitely adds pressure to the situation when you achieve a home run your first time at the plate,” Buchanan told The Litigation Daily a week after the jury verdict came down on Oct. 5.
Luckily, the team handling these cases had been in place long before they went to trial. Along with Buchanan and Seeger of Seeger Weiss, that team included Rafferty, who had just scored the $150 million win, and Bill Robins of Robins Cloud.
Buchanan had been a part of the trial team for Rafferty's bellwether case, and Rafferty likewise took a supporting role when it was Buchanan's time at bat. According to Buchanan, the two “drew on each other extensively” during the two trials, so when the mistrial derailed their initial game plan, it wasn't difficult for Buchanan to come out swinging as lead attorney.
“We're not law firms of 60 to 100 lawyers, so we collaborate and draw on one another, and develop these cases together. We developed the discovery, and the trial themes,” Buchanan said. “We'd worked these up together, Chris, Troy, Bill Robins and I with the concept of going through the bellwether trials together. When Chris couldn't do it, it made sense for me to do it. It was really a matter of just filing in for my partner.”
U.S. District Judge Matthew F. Kennelly of the Northern District of Illinois has designated 34 plaintiffs lawyers to lead the consolidated litigation.
The AndroGel case was not the first time Buchanan and Rafferty had worked together. In 2012, the pair won $18 million for two Accutane users in New Jersey state court.
But, the fact that the AndroGel bellwethers were being tried in Chicago, far away from either New York, where Buchanan works, or Pensacola, where Rafferty is based, added to the stress, Buchanan said.
“There's always a lot of pressure in any bellwether,” Rafferty said. “The fact that it was back-to-back like that, which is not typical, and where you have one right after the other, and the situation with Chris, it adds to it.”
In the wake of Rafferty's $150 million win, Buchanan said he knew the defense would be coming back with a renewed determination to fight the claims and make sure the plaintiffs couldn't score another significant victory so early in the litigation. The defense, represented by Paul, Weiss, Rifkind, Wharton & Garrison and Dechert, adjusted their arguments and brought new emphases to their case, Buchanan said.
However, with each member of the team knowing the complexities of the case inside out, the plaintiffs were able to come back with another verdict surpassing the $100 million mark.
“I think the team thought it was definitely up to the challenge, and was gunning for that or more,” Buchanan said. “When you can make that happen twice, that's quite an accomplishment.”
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