The Trial Lawyer Fall 2017 - Page 56

Arguments For The Plaintiff Mr. Mitchell’s attorneys entered into evidence the business plans of AbbVie’s corporate predecessors in which management laid out strategies to promote AndroGel for the treatment of “andropause” (a marketing term, coined by the industry, referring to the natural decline in male hormone levels over time) and the normal symptoms associated with the aging process. Plaintiff’s counsel pointed out an FDA communication, issued in 2000, ordering that the proposed advertising claims in question be discontinued. Defense lawyers countered that AbbVie had changed its ads in order to comply with FDA guidelines and had never received any warnings or further guidance on new advertisements submitted for review later on. In response, the plaintiffs pointed to numerous fraudulent and misleading 54 x The Trial Lawyer television and print promotions claiming AndroGel to be a cure for “andropause.” These aggressive marketing campaigns, along with other actions, enabled AbbVie and its predecessors to grow Androgel annual sales from $100 million in 2001 to $1.1 billion in 2012. Plaintiffs’ counsel also pointed out the aforementioned adverse event reports, including those in which physicians had informed the company of heart attacks and strokes due to Androgel. According to scientific literature, these conditions are caused by an increase in hemoglobin and hemocrit (red blood cells), which exacerbate the risk of stroke and cardiac events. These studies