One would think that a verdict of this magnitude would send a very loud, very clear message to Androgel maker AbbVie. Unfortunately, the testosterone therapy maker may actually escape paying on this verdict, calling into question whether the company will still “hear” the jury.
The $150 million testosterone verdict was just issued in the case of an Oregon man whose lawsuit accused AbbVie of hiding the risk of heart attacks associated with the company’s prescription testosterone therapy product. The man suffered a heart attack after using Androgel for several years.
After hearing testimony in the case, a federal court jury did not make any award to the Oregonian for compensatory damages – including medical bills and pain and suffering – related to his heart attack. Instead, The jury seemingly tried to send the Androgel maker a message by awarding $150 million in punitive damages based on their findings that company officials made fraudulent misrepresentations about Androgel’s safety profile.
Legal commentators are already weighing in on the unusual verdict and raise concerns about whether the award will survive a likely appeal by AbbVie. “The punishment award probably will be overturned because the U.S. Supreme Court has said such awards should be based on actual damages to be reasonable,” according to Neil Vidmar, a Duke University law professor.
Federal testosterone therapy lawsuits are consolidated in a U.S. District in Chicago. Similar to the recently tried case, the lawsuits allege that AbbVie and other testosterone therapy manufacturers hid the risk of clots, including heart attacks and strokes, associated with their products. The lawsuits further allege that manufacturers, especially AbbVie, violated the law with aggressive marketing campaigns. AbbVie’s aggressive marketing for Androgel included an $80 million marketing campaign in 2012 to promote the product for a condition coined “low-T.” Television ads promised immediate benefits for men suffering from low energy and lack of sexual drive, according to court filings. The corporate crafting of the “low-t” problem has led to allegations of “disease mongering” by testosterone manufacturers.
Thousands of other plaintiffs await their day in court and hope that, regardless of the outcome of any appeals in this case, the jury’s message is heard. The next federal Androgel trial is set for September 2017.