September 17, 2019

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Jury Tests the Limits in AndroGel False Ad Verdict

In late July, an Illinois jury came to a bizarre verdict in a case over an alleged link between heart attacks and AndroGel, a gel product used for treating low testosterone (or “low T”). The jury found that AbbVie, Inc., the drug company behind AndroGel, although not strictly liable or negligent in allegedly causing a user’s heart attack and owing $0 in compensatory damages, was nevertheless liable for fraudulent misrepresentation in its product advertising and was responsible for $150 million in punitive damages.

Over the past few years, roughly 6,000 individuals have filed lawsuits linked to testosterone gel products alleging health concerns, like heart attacks.  One of those lawsuits was brought by Jesse Mitchell in Illinois district court in 2014.  This July, Mitchell’s lawsuit became the first of these cases to reach a jury verdict, and could have an important impact on the vitality of the remaining lawsuits.

In Mitchell’s complaint, he alleged that he suffered a heart attack because of his use of AndroGel. To start, Mitchell asserted that AbbVie embarked on a “massive advertising campaign” to convince men that they suffer from low T, while promoting a product to treat the condition that was not safe for consumers.  Through its advertising campaign, the complaint alleged, AbbVie hoped to artificially boost the customer base for products used to treat low T.  In order to do so, AbbVie allegedly created unbranded websites containing questionnaires that attributed common symptoms of aging (like “listlessness” and “increased body fat”) to low T.  Mitchell further alleged that AbbVie was promoting a product that was not a safe and effective treatment for low T, and pointed to studies that associated the use of testosterone replacement gel with a number of health risks, like strokes and heart attacks.

At trial, AbbVie countered that AndroGel could not be linked to Mitchell’s heart attack.  First, AbbVie argued that Mitchell’s cited studies were flawed and did not show a risk of heart attack associated with the use of testosterone replacement gel in individuals of Mitchell’s age.  Further, AbbVie pointed to Mitchell’s own health conditions, noting that he was an overweight smoker who suffered from high blood pressure and cholesterol, and that he harbored a family history of heart disease.  According to AbbVie, these factors alone, without the use of AndroGel, could have caused Mitchell’s heart attack.

After hearing these arguments, the jury’s verdict was rather unorthodox.  The jury found that AbbVie was not liable for Mitchell’s heart attack, thus rejecting Mitchell’s claims for strict liability and negligence, but then determined that AbbVie was liable for fraudulent misrepresentation as a result of its advertising campaign.  The jury denied any compensatory damages sought by Mitchell, yet required that AbbVie pay $150 million in punitive damages.

A jury verdict awarding punitive damages in the absence of any compensatory damages is a highly unusual outcome, which seemingly will be overturned. Earlier this week, AbbVie filed a motion to strike the punitive damages award, citing, among other cases, the Seventh Circuit’s decision in Pileco v. Slurry Systems, in which it was “obvious” to Circuit Judge Posner that “punitive damages can’t lawfully be awarded when no compensatory damages are awarded.” 804 F.3d 889, 892 (7th Cir. 2015).  Regardless of the outcome of the motion to strike the punitive damages, the jury verdict was an outcome that neither party likely expected, and a peculiar one in the annals of false advertising law.

© 2019 Proskauer Rose LLP.

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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Daniel Werb, Proskauer Rose, litigation attorney
Associate

Daniel Werb is an associate in the Litigation Department.

Prior to joining Proskauer, Dan was a judicial intern for the Honorable Eric N. Vitaliano of the U.S. District Court for the Eastern District of New York. At Columbia Law School, he served as an Articles Editor of the Columbia Journal of Law & the Arts and was an extern at Volunteer Lawyers for the Arts.

212-969-3273
Russell Kostelak, Litigation Department  Proskauer Rose, New York,
Associate

Russell Kostelak is an associate in the Litigation Department. He focuses on complex litigation in federal and state courts with an emphasis on intellectual property, including copyright, trademark and advertising law. Russell has handled copyright infringement and ownership disputes on behalf of textbook and music publishing companies; trademark infringement, clearance and prosecution matters; and false advertising cases implicating consumer fraud allegations. He also has experience in securities litigation matters, including shareholder class actions and insider...

212-969-3216