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In re Testosterone Replacement Therapy Products Liability Litigation Coordinated Pretrial Proceedings

United States District Court, N.D. Illinois, Eastern Division

May 28, 2018

In re Testosterone Replacement Therapy Products Liability Litigation Coordinated Pretrial Proceedings
v.
AbbVie, Inc. et al., No. 15 C 2760 This document applies to all cases and to Rowley

          CASE MANAGEMENT ORDER NO. 123 RULINGS ON CERTAIN MOTIONS IN LIMINE IN ROWLEY V. ABBVIE INC. ET AL., CASE NO. 15 C 2760)

          MATTHEW F. KENNELLY, DISTRICT JUDGE

         Robert Rowley was prescribed AndroGel, a testosterone replacement therapy (TRT) drug, by physician assistant Teryl Hunsaker in April 2012. In April 2013, Rowley was diagnosed with a deep vein thrombosis (DVT) in his left leg. He alleges that AndroGel caused the DVT and has sued AbbVie, Inc. and Abbott Laboratories (collectively AbbVie), which make and sell the drug.

         Rowley's case is the fifth AbbVie "bellwether" case in this multidistrict litigation proceeding to go to trial. In this order, the Court rules on certain of the parties' motions in limine. At the final pretrial conference set for May 31, 2018, the Court will hear argument on the remaining motions.

         A. AbbVie's motions 1. Evidence about off-label marketing

         AbbVie contends that Rowley was prescribed AndroGel on-label and that, as a result, evidence about off-label marketing is irrelevant and should be excluded. Rowley contends that these marketing efforts affected PA Hunsaker's decision to prescribe the drug and are therefore relevant. The Court will hear argument on this point at the final pretrial conference.

         2. Evidence of AbbVie's sales and profits from AndroGel

         Rowley contends that evidence regarding the amount and growth of AbbVie's sales and profits from AndroGel is admissible to show its motive to expand the market for the drug beyond the allegedly narrow group of persons to whom the drug was approved for sale by the Food and Drug Administration (FDA). AbbVie argues this evidence is irrelevant because Rowley was prescribed the drug on-label. This motion is interrelated with the previous one; the Court will hear argument on the point at the final pretrial conference.

         3. Causation opinions by Rowley's treating medical personnel

         a. PA Teryl Hunsaker

         AbbVie seeks to exclude opinion testimony regarding causation by PA Hunsaker, another PA named Brent Pitcher, and Dr. Douglas Hyldahl, Rowley's primary care physician. (Rowley has agreed not to offer opinion testimony by Dr. Daniel Sharp, which AbbVie had also moved to exclude.)

         It appears that after being diagnosed with a DVT in April 2013, Rowley continued to take AndroGel. PA Hunsaker discontinued the prescription in June 2013, noting in his records that he was doing so because "I do believe that [Rowley's] androgel is a significant contributing factor to his development of dvt." AbbVie's attorneys questioned Hunsaker about this in detail during his deposition, and he fully explained the basis for the notation and his decision to discontinue the prescription. Because Hunsaker formed this opinion during the course of his treatment of Rowley, no report under Federal Rule of Civil Procedure 26(a)(2)(B) was required as a prerequisite for admission of his testimony. See Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010). And though Rowley appears not to have disclosed Hunsaker under Rule 26(a)(2)(A) as a witness who would present opinion testimony, the non-disclosure was harmless because the opinion was disclosed in Hunsaker's treatment notes, and AbbVie had a full and fair opportunity to question him about it during his deposition. See Fed. R. Civ. P. 37(c)(1).

         AbbVie also argues that Hunsaker's opinion is insufficiently supported and that, as a PA, he is not qualified to render an opinion on causation. The Court will hear argument on these points at the final pretrial conference.

         b. PA Brent Pitcher

         PA Brent Pitcher worked with Hunsaker. It appears from Pitcher's notes that he related to Rowley a message from Hunsaker related to Hunsaker's view that AndroGel was a significant contributing factor to Rowley's DVT. Assuming that Hunsaker's opinion is admissible, testimony by Pitcher on this point ...


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