Ever since AbbVie took its first major loss in its AndroGel liability litigation—a $150 million verdict back in July—the drugmaker has insisted that the result would not stand. The company was correct, as a federal judge struck down the verdict last week for being inconsistent.
Judge Matthew Kennelly in the Northern District of Illinois overturned the $150 million verdict in the case of Jesse Mitchell because the jury only issued punitive damages and no compensatory damages.
"On its face, the jury's verdict appears to be internally inconsistent," Judge Kennelly wrote last week. "By finding for Mitchell on the fraudulent misrepresentation claim, the jury necessarily found that Mitchell proved each element of that claim by clear and convincing evidence, including that Mitchell 'was damaged as a direct result of his and/or his physician's reliance on [AbbVie's false] representation.'"
But the judge noted that "by awarding zero compensatory damages, the jury also found that Mitchell had not 'been damaged.'" The judge ordered a new trial, which will start on March 5.
After the jury reached its verdict in July, both parties filed motions in opposition. Mitchell said the lack of compensatory damages was "clearly the result of an oversight" and asked the court to award the amount of his medical bills. AbbVie, for its part, argued that the evidence at trial was insufficient to award damages and that the lack of compensatory damages must have meant Mitchell came short in proving his claims.
After considering the arguments, Judge Kennelly wrote that "the court concludes that the jury's findings cannot be considered consistent under any 'fair reading' of the instructions and the jury's findings."
Mitchell's case was the first to reach a verdict among thousands claiming AbbVie pushed AndroGel off-label and put patients at an unnecessary risk. According to AbbVie's most recent quarterly filing, about 4,300 cases are grouped up in Illinois federal court, and about 210 are in state courts.
Since Mitchell's verdict, a case brought by Jeffrey Konrad ended in a $140 million verdict against the drugmaker. AbbVie said in its quarterly filing that the verdict "will be the subject of post-trial proceedings."
Fueled by aggressive marketing, AndroGel climbed to blockbuster sales before safety concerns and litigation spread. The drugmaker launched its "Is it Low T?" campaign in 2008 to change attitudes toward testing and treatment, pitching AndroGel as an option to boost energy levels and improve daily life.
Fellow drugmaker Eli Lilly makes testosterone therapy Axiron and faced 538 liability cases in November, according to Reuters. It reached a global settlement on its cases last Thursday, according to a court filing, and has entered into a memorandum of understanding. The filing didn't outline any specifics for the deal, and the court stayed all proceedings involving Eli Lilly so the sides can finalize the deal.