Defendants in the multidistrict litigation over testosterone gel have moved to dismiss the claims of a large number of plaintiffs for failing to properly submit their plaintiff fact sheets.

Abbott Laboratories and AbbVie, the makers of AndroGel testosterone gel, say as many as 169 plaintiffs have filed material deficient plaintiff fact sheets and nine plaintiffs failed to file at all. The defendants are now asking the court to dismiss the testosterone product claims of all plaintiffs who fail to fix the paperwork defects by Aug. 14, 2015.

At issue in these testosterone product liability claims is how defendants Abbott Laboratories and AbbVie handled information about the tendency of AndroGel to increase its users’ risk of heart disease, pulmonary embolism, stroke, heart attack, and sudden death. Plaintiffs argue that AbbVie and Abbott improperly withheld information about these testosterone product risks from patients and their doctors.

The plaintiffs also argue that AbbVie and Abbott improperly promoted AndroGel for use as a lifestyle drug. In 2012, the companies began a promotional campaign encouraging men experiencing lack of energy, declining sex drive, and depressed mood to ask their doctors about using AndroGel to treat “low-t,” the companies’ term for a decrease in testosterone that happens naturally with age and is not actually a recognized medical condition.

The Testosterone Gel MDL

A total of over 1,750 individual testosterone gel lawsuits are currently consolidated into this MDL before Judge Matthew Kennelly in Illinois federal court. The court is in the process of choosing 32 exemplary testosterone gel lawsuits from the MDL that will serve as the first cases to go to trial. These “bellwether” cases will be used to give the court and parties a general feel of how the evidence will play out with juries.

For the court, bellwether trials have a particular value in promoting settlement of the remaining testosterone product claims in the MDL. Part of Abbott and AbbVie’s argument in favor of dismissal is that the pool of potential bellwether claims is tainted by the presence of plaintiffs who have not properly filed their plaintiff fact sheets, leaving the pool “not complete or well-defined.”

AbbVie and Abbott are also asking the court to exclude from the bellwether pool the claims of 180 testosterone gel plaintiffs who admitted to using other manufacturers’ testosterone supplements in addition to using AndroGel. The defendants argue that these claims will raise certain case-specific factual and legal issues, making them unsuitable as bellwether cases.

The Plaintiffs’ Steering Committee oppose AbbVie and Abbott’s motion. They say the defendants’ allegations of deficiencies in the fact sheets are meritless. They also argue that AbbVie and Abbott are using the discovery process as an offense rather than as a means of exchanging relevant evidence.

While most of the claims involve AbbVie’s AndroGel, other companies’ testosterone products are implicated too. The MDL has also roped in companies including Pfizer Inc. and Actavis Inc., and the list of defendants includes the makers of testosterone products such as AndroDerm, Axiron and Testim.

The Testosterone Gel MDL is In Re: Testosterone Replacement Therapy Products Liability Litigation, MDL No. 2545 in the U.S. District Court of the Northern District of Illinois.