Testosterone Trial Kicks Off With New Team at Helm for Plaintiffs
Lawyers who scored verdicts of $140 million and $150 million last year in the first trials over low testosterone medications have switched lead counsel for a trial that begins on Monday.
January 08, 2018 at 04:12 PM
4 minute read
Lawyers who scored verdicts of $140 million and $150 million last year in the first trials over low testosterone medications have switched lead counsel for a trial that begins on Monday.
The trial, which is expected to last two weeks, comes in a case brought by Robert Nolte, an Arizona man who took AndroGel, a prescription gel used to treat low testosterone. It's the third trial against AbbVie Inc. and Abbott Laboratories Inc., which are among several defendants named in 6,000 lawsuits coordinated in multidistrict litigation in federal court in Chicago. But unlike the prior AbbVie trials, which alleged the drugs caused heart attacks, this month's trial makes claims over blood clots. Also, instead of Seeger Weiss, the lead trial counsel for the plaintiffs was set to be Ronald Johnson of Schachter, Hendy & Johnson in Fort Wright, Kentucky. Joining him on the trial team are Morgan & Morgan's Frank Petosa of Fort Lauderdale and Keith Mitnik of Orlando, and Douglas & London's Stephanie O'Connor in New York.
“It is a different trial team this go-round from the plaintiffs' side,” said Trent Miracle, co-lead counsel in the multidistrict litigation over low testosterone drugs along with Johnson and Chris Seeger of New York's Seeger Weiss.
But he expected similar results.
“I would expect us to be very successful,” said Miracle, a shareholder at Simmons Hanly Conroy in Alton, Illinois. “The one takeaway we've been able to get from each of these successive trials, especially against AbbVie, is that juries really don't like the conduct from AbbVie, and that reflected itself in a $150 million punitive award and the next one.”
Johnson did not return a call for comment.
James Hurst of Kirkland & Ellis in Chicago is expected to head up AbbVie's trial team. Former U.S. Solicitor General Paul Clement, a Washington, D.C., partner at Kirkland & Ellis, has been involved in post-trial briefs in the earlier trials, which were led by Paul, Weiss, Rifkind, Wharton & Garrison's David Bernick in New York and Dechert counsel Michelle Yeary, of Princeton, New Jersey.
The first trial, which ended on July 24, 2017, in a $150 million verdict, was handled by Seeger Weiss partner David Buchanan in New York. But the award was all punitive damages, and, on Dec. 22, 2017, U.S. District Judge Matthew Kennelly of the Northern District of Illinois, vacated the $150 million award but set a new trial on the fraudulent misrepresentation claim—the only one that the plaintiff won—for March 5.
In the second trial, which ended on Oct. 5, 2017, with a $140 million verdict, including $140,000 in compensatory damages, Buchanan partnered with Troy Rafferty of Levin Papantonio Thomas Mitchell Rafferty Proctor in Pensacola, Florida, and Bill Robins of Robins Cloud in Santa Monica, California. The case first ended in a mistrial after Seeger suffered heart arrhythmia.
Last month, another defendant in the multidistrict litigation, Eli Lilly and Co., which was set to go to trial for the first time on Jan. 29, settled its cases for an undisclosed sum.
Meanwhile, the first trial against Auxilium Pharmaceuticals, a subsidiary of Endo Pharmaceuticals plc, ended in a defense verdict on Nov. 16. 2017.
And in state courts, a trial against Auxilium in Pennsylvania settled this week, and AbbVie won a trial in Illinois, Miracle said.
“It's been crazy,” he said. “It's a moving target on who ends up in the courtroom actually trying the cases.”
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