Testosterone Trial Punitive Damages Verdicts Send a Clear Message

By Emily Cox
Testosterone Trial Sends Clear Message
Flickr/Mike Lowe

In the latest testosterone trial, a federal jury ruled Thursday that AbbVie must pay more than $140 million in punitive damages for aggressively expanding Androgel’s market share through insidious machinations and flagrant misrepresentations of the testosterone gel’s safety.

This is the second testosterone trial in the multidistrict litigation (MDL) over manufacturers specifically targeting and exploiting aging men to increase sales despite serious cardiovascular risks. The plaintiff, Jeffrey Konrad, alleged that AbbVie had evidence connecting testosterone to significant cardiovascular events but never warned the medical community or general public. Instead, AbbVie put its desire to grow Androgel’s market before patients’ very lives. On its website, AbbVie claims that patients are what matter most. Where was this ideology when AbbVie was promoting its testosterone gel to aging men without mentioning the risks, conducting proper testing, or even getting FDA approval for expanding indications?

Konrad sued AbbVie five years after suffering a heart attack while using Androgel. However, the jury did not find AbbVie liable for his heart attack. But, it did find AbbVie guilty of negligence, intentional misrepresentation, and misrepresentation by concealment. The jury awarded Konrad $140,000 in compensatory damages. These cover $40,000 for medical care following his 2010 heart attack and an additional $100,000 for pain and suffering. However, these compensatory damages are merely a footnote in the punitive damages the jury levied against AbbVie.

The jury ordered AbbVie to pay $140 million dollars in punitive damages for its “reprehensible” behavior. Punitive damages punish companies for immoral business practices in the hopes that these companies will rectify these behaviors and at least try to act in a manner consistent with normal human beings rather than soulless corporate monsters that only see patients in terms of sales potential.

Testosterone Trial Punitive Damages Speak Volumes About Depths of AbbVie’s Depravity

Currently, there are almost 7,500 testosterone trial cases pending against AbbVie and other drug companies in the ongoing MDL in the Northern District of Illinois. Konrad’s trial concluded mere months after the MDL’s first bellwether trial. The first testosterone trial involved Jesse Mitchell’s heart attack while using Androgel. Like Konrad, the jury found that Mitchell already had significant pre-existing cardiovascular risk factors that negated product liability claims…in a product liability case. In fact, the jury did not even award any compensatory damages for Mitchell’s injuries. However, it did levy a $150 million punitive damages verdict against AbbVie for its outrageously misleading advertising. Unfortunately, it’s still unclear if punitive damages are even enforceable without accompanying compensatory ones. But, regardless, juries are sending a clear message about the morality of AbbVie’s business practices with these punitive damages verdicts.

Generally, liability is kind of crucial in a product liability case. Based on the name itself, one could argue that it’s pretty much the foundation of these kinds of cases. And, so far, plaintiffs are batting a thousand despite losing at trial over product liability claims. It is a true testament to the very depravity of AbbVie’s business practices. These verdicts indicate that there is a fundamental immorality in AbbVie’s motivations and actions that run contrary to our most basic moral sensibilities.

Testosterone Trial Jurors’ Outrage Over AbbVie’s Egregious Behavior Could Be Decisive in Overall Litigation

The juries in both trials concluded that that they could not attribute the plaintiffs’ injuries to the testosterone gel. But, their mutual decisions to punish the company for the morality of its actions could shape up to be an insurmountable obstacle for AbbVie as the litigation continues.

“I’d be really concerned about how my behavior was going to be judged by the juries,” a plaintiff attorney said.  “It definitely shows them they’re at huge risk.”

In the long run, fixing plaintiff problems is far easier than fixing the jury’s outrage over AbbVie’s actions. While plaintiffs change case-to-case, AbbVie’s marketing strategy will remain the same throughout the litigation.

“Correcting the anger, that’s the bigger mountain to climb,” a plaintiff attorney said.

Consequently, the incendiary response that AbbVie’s behavior ignites could weigh heavily into any jury decision regardless of the actual strength of the case at hand.

Testosterone Trial Indicates AbbVie Created Market for Androgel

Before the FDA even approved AndroGel, AbbVie was already pouring millions to raise awareness for a condition the company called “Low T.” Low-T’s symptoms are remarkably similar to those of the normal male aging process. Occasionally grumpy? Not as strong as you were 20 years ago? Have you ever fallen asleep after dinner? Good news! You’re not old. You just have Low-T, and, luckily, testosterone gel will fix all that and more! AbbVie didn’t just create a market for Androgel with its premarketing messages. It created a medical condition.

Before AbbVie raised awareness for Low-T, losing muscle and/or sex drive were undesirable but predictable signs of aging. AbbVie blatantly preyed on older men’s insecurities and took them straight to the bank. IMS Health data shows testosterone sales skyrocketed from $324 million in 2002 to nearly $2.3 billion in 2012.

However, the FDA never cleared AbbVie’s testosterone gel for treating Low-T. And AbbVie even had evidence linking testosterone to serious cardiovascular events. However, these kinds of mundane considerations had absolutely no bearing on AbbVie’s determination to get its testosterone gel into the hands of as many occasionally tired men as possible.

AbbVie began marketing the drug aggressively to doctors and consumers as the miracle solution to Low-T after the company won FDA approval to market the medication to treat hypogonadism, or primary testicular failure. Despite clear FDA indications, television and print ads suggested that the testosterone therapy could also be used to treat typical signs of aging.

The company was far more aggressive in its marketing to the medical community. AbbVie experts and direct sales staff flooded medical conferences, convincing drug company employees that Androgel was “the fountain of youth.”

“Everywhere doctors went…[they got] AbbVie’s message,” a plaintiff attorney told the jury. “That’s how you build a billion-dollar market.”

Testosterone Trial Exposes Significant Androgel Risks

T therapy was initially just for men who can’t produce enough testosterone due to testicle injury, cancer, or genetic defects. However, AbbVie opened the flood gates, convincing countless men to take the hormone to feel and look younger. Critics say that this exposes otherwise healthy bodies to serious side effects.

The Journal of American Medical Association published a study in 2013. Researchers found a 30 percent jump in the risk of stroke, heart attack, and death among men undergoing testosterone therapy. Testosterone therapy also makes the body shut down its own production of the hormone. Consequently, testicles may shrink, effectively creating life-long customers, while increasing the toll on patients’ bank accounts and physical health exponentially.

AbbVie Tries to Dodge Accountability for Hiding Risks

At trial, AbbVie tried to claim that there was no evidence of testosterone gel-related cardiovascular risks until a trio of studies were published in 2013 and 2014. Following these publications, the FDA investigated and updated the label for all testosterone therapy drugs to include a warning about the risk of “major adverse cardiovascular events.”

However, attorneys to the plaintiffs were quick to point out the multitude of other studies from before 2013 that AbbVie consciously ignored. These studies revealed a substantial connection between Androgel and heart attacks. AbbVie also never performed its own cardiovascular studies before pushing the drug on an at-risk population. Other cases in the ongoing testosterone MDL accuse AbbVie and other companies of hiding pulmonary embolism and stroke risks, as well as cardiovascular ones.

During closing statements, a plaintiff attorney reminded the jury that AbbVie is responsible for the drugs it sells. AbbVie was too concerned with its financial security that it lost sight of patient safety and ignored signs that called Androgel’s safety into question.  Instead of testing to evaluate these signs, the company pushed the drugs on ever more men, stealing their ability to make informed medical decisions by hiding significant health risks. Instead, their desire to expand market share was put before everything – including patient health. Now, juries are making sure they pay.


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