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New Trial Ordered Where Jury’s Verdict Didn’t “Gel”

Last summer, we reported on a bizarre verdict in which an Illinois jury levied a $150 million punitive damages award against AbbVie, Inc., the drug company behind AndroGel, without awarding any compensatory damages.  As predicted, the punitive damages award was recently vacated.  Finding that the jury’s findings were “logically incompatible,” the Court vacated the punitive damages award, and ordered a new trial on plaintiff’s claim for fraudulent misrepresentation and damages relating to that claim.

As previously reported, this case is one of thousands in which plaintiffs have alleged that AndroGel caused heart attack or other injury, that AndroGel was not safe and effective for treating low testosterone, and that AbbVie promoted AndroGel to men who did not actually have low testosterone.  In this particular case, AbbVie’s defense was that AndroGel could not have been linked to plaintiff’s heart attack because the scientific studies relied on by plaintiff did not show an associated risk of heart attack in plaintiff’s age group, and plaintiff’s heart attack could have been caused by his weight, smoking habit, high blood pressure and cholesterol, and family history of heart disease.

After trial, the jury found that AbbVie was liable for fraudulent misrepresentation, but awarded zero dollars in compensatory damages.  The jury also rejected plaintiff’s claims for strict liability and negligence.  Nevertheless, the jury awarded $150 million in punitive damages.

The Court found that the jury’s verdict was internally inconsistent because it found that AbbVie was liable for fraudulent misrepresentation, which includes damages as an element of that claim, yet awarded no compensatory damages.  However, the Court declined to enter judgment as a matter of law in favor of AbbVie because, among other things, the jury’s findings could not be harmonized with the jury instructions, which clearly conveyed that damages were a necessary element of fraudulent misrepresentation.  Thus, the Court ordered a new trial on this claim and related damages.  In doing so, the Court noted that its decision was based on the verdict’s inconsistency, and thus it did not need to decide whether a punitive damages award could stand in the absence of an award of compensatory damages.

The new trial is set for March 2018. 

© 2020 Proskauer Rose LLP.


About this Author

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

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.

Daniel Werb, Proskauer Rose, litigation attorney

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.

Russell Kostelak, Litigation Department  Proskauer Rose, New York,

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...