Over the past decade, drug companies have been heavily marketing the sale of so-called testosterone replacement therapy as a treatment for the signs of normal male aging, despite a lack of proven benefits and evidence of serious health risks. According to a recent news article from Commercial Appeal, a jury has awarded one plaintiff over $140 million in a product liability lawsuit filed after popular testosterone replacement therapy drug, AndroGel, caused him to have a massive heart attack.
This case was filed in federal district court located in Chicago and the defendant was AbbVie, a major drug manufacture and maker of AndroGel. The break down of the damages was $140,000 in compensatory damages and $140 million in punitive damages.
Types of Legal Damages in Boston Testosterone Injury Lawsuits
As our Boston testosterone injury lawyers can explain, punitive damages are not common in personal injury or even products liability lawsuits. In Massachusetts, and the rest of the nation, the standard form of damages are known as compensatory damages. As the name, implied, compensatory damages are meant to compensate a plaintiff for the injury or harm suffered. It is easier to understand how compensatory damages work in a contracts lawsuit, but the law works the same in a products liability lawsuit such as one involving injury cased by testosterone replacement therapy drugs like AndroGel.
For example, let’s look at a situation where someone hires a contractor to build a detached garage. The contract for the garage is estimated to cost $20,000. In our example, the contractor takes $10,000 as an advanced payment and begins work on the new garage. When then contractor is three weeks into the project, he just walks off the job while it is not finished and does not refund any of the plaintiff’s money. The plaintiff is left with no choice but to hire another contractor to finish the job and it costs $17,000 to complete the garage. This means the plaintiff has spend $27,000 to finish the garage instead of $20,000. He sues the contractor and a jury awards $7,000 in damages. This is because getting $7,000 back from the first contractor means the plaintiff has paid $20,000 total and has a new garage. If the jury awarded the full $10,000, this would mean the plaintiff got a garage for $17,000 so that would be a surplus of the $3,000 and thus more than enough to compensate the plaintiff. The law is designed to compensate the plaintiff, not provide a windfall.
Punitive Damages in Products Liability Lawsuits in Boston
Punitive damages are generally not allowed in injury lawsuits. The exception is when plaintiff can prove defendant showed willful and wanton disregard to the safety of others. This means that in order to get punitive damages, outside of those allowed under a specific statute such as the Massachusetts Consumer Protection Act pursuant to Chapter 93A of the Massachusetts General Laws (M.G.L.), there must be conduct that goes far beyond the bounds of standard negligence. There are however, limits of the amount of punitive damages, when they are appropriate as held in State Farm Mutual Automobile Insurance Company v. Campbell as decided by the U.S. Supreme Court. In this case, the court held that punitive damages are constitutional, but should cannot be more than ten times the compensatory damages as that is normally considered unreasonable. There is however, the possibility of much higher punitive damages depending on the facts of the case. This is what happened in the recent Abbvie AndroGel case, but the defendant has said it will appeal the verdict.
In this recent case, the jury found that the plaintiff took the drugs because the company marketing material told him it would cure his low libido and “lack of vitality.” Unfortunately, the low libido turned out to be the least of his problem when he suffered a major heart attack after taking the testosterone replacement therapy hormone.
He began taking AndroGel in 2010 at the age of 50. He had a heart attack two months after he started taking the drugs. He recovered from his injuries but he said that his quality of life has not returned to normal following his heart attack. The main theory of liability was failure to disclose the risks of taking testosterone replacement therapy drugs to doctors who were proscribing the drug as well as failing to adequately test the drug prior to putting on it market. The company has maintained its position that the drugs are safe and this is the after the U.S. Food and Drug Administration (FDA) required the makers of testosterone replacement hormone to list the higher risk of stroke and heart attack on marketing materials and monographs supplied with the prescriptions.
It is failing a to disclose known hidden dangers that forms the basis of such high punitive damages awards. The companies making testosterone therapy drugs were well aware of the risk of heart disease and stroke, but were not disclosing these risks because of fear that it would hurt sales. In other words, these companies were knowingly putting patients at risk to make more money and that was unacceptable to the jury. The jury can use punitive damages to not only punish the defendant for its conduct in this case, but also to send a message that this type of conduct will not be tolerated in the future.
The company was also alleged to have not conducted adequate testing. If a company has reason to know of a potential danger, but chooses not to do the testing so they do not have to disclose the results, this is not acceptable. Choosing to be willfully blind to a danger they knew or should have known about is not acceptable under the law, and it is not acceptable to modern juries.
It is important to understand that these cases are not arguing the doctors did anything wrong. While there are clearly problems with the many so-called Low T clinics around the nation, when a primary care physician or specialist proscribes a new drugs, they cannot counsel a patient on the true risks if they are not disclosed by the manufacturer or well-known by the medical community.
Call the Boston Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Collierville man awarded $140 million in lawsuit over testosterone drug AndroGel, October 10, 2017, By Tom Charlier, Commercial Appeal
More Blog Entries:
FDA Announces Testosterone Meds Must Carry Broader Warning, July 7, 2014, Boston Products Liability Lawyers Blog