An Illinois federal judge has negated the $150 million verdict against AbbVie Inc. and ordered a new trial. The verdict involved the testosterone replacement drug AndroGel. The result of the first bellwether trial in multidistrict litigation (MDL) was overturned by U.S. District Judge Matthew Kennelly. The jury’s verdict appears “internally inconsistent” on its face, Judge Kennelly said in a 25-page order that faulted jurors for awarding punitive damages without a compensatory award. His order said that the jury could have awarded Jesse Mitchell punitive damages only if they found that he proved every element of his misrepresentation claim, including that he was damaged as a direct result of AbbVie’s alleged misrepresentations.

Instead, the jury awarded no monetary award for compensatory damages. “Of course, it would violate the precepts of logic to assert simultaneously that a party has been damaged and not been damaged,” Judge Kennelly said.

The verdict had come after a three-week trial over allegations that AbbVie ignored a connection between AndroGel and heart attacks while promoting it to treat a condition for which it wasn’t approved. Neither party challenged the jury’s verdict clearing AbbVie of strict liability and negligence over Mitchell’s underlying heart attack, but both sides told Judge Kennelly in post-trial briefing that he should interpret its $150 million punitive damages award in their favor. However, the judge said that both Mitchell’s and AbbVie’s attempts at avoiding a new trial were “unconvincing.”

Judge Kennelly rejected Mitchell’s contention that the zeroed-out compensatory damages were an “oversight” correctable by awarding him the undisputed amount in heart attack-related medical bills, finding “one could as readily say, as AbbVie does, that the award of zero damages requires a liability finding in AbbVie’s favor.” But he also said he can’t easily side with AbbVie’s argument that he should enter judgment against Mitchell on the grounds that the jury’s verdict means it found that he suffered no compensable damage. He said AbbVie’s theory that the jury thought it could agree with Mitchell’s fraudulent misrepresentation claim without also finding that he had been damaged “is directly inconsistent with at least two express provisions” of the instructions jurors received at trial.

And while AbbVie’s theory that the jury’s understanding of the word “damages” could have led to a finding that Mitchell suffered a different kind of harm than the heart attack “appears plausible at first glance,” Judge Kennelly said the company failed to provide any examples of such a harm, and that agreeing with that argument would be “directly at odds” with his instruction on causation. “The court concludes that it would be committing an error if did not order a new trial,” Judge Kennelly wrote, noting the jury’s punitive damages award “depends upon, at least, the viability of the jury’s liability finding.”

The Mitchell suit in 2014 was one of thousands filed against AbbVie and other manufacturers of testosterone replacement therapy gel products, and it was consolidated in an Illinois-based multidistrict litigation.

The case is Mitchell v. AbbVie, (case number 1:14-cv-09178), and the MDL is In re: Testosterone Replacement Therapy Products Liability Litigation, (case number 1:14-cv-01748) both in the U.S. District Court for the Northern District of Illinois.


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