Skip to content

Menu

LexBlog, Inc. logo
NetworkSub-MenuBrowse by SubjectBrowse by PublisherBrowse by ChannelAbout the NetworkJoin the NetworkProductsSub-MenuProducts OverviewBlog ProBlog PlusBlog PremierMicrositeSyndication PortalsAbout UsContactSubscribeSupport
Book a Demo
Search
Close

New Jury Imposes Disproportionate Punitive Award In AbbVie Retrial

By Evan M. Tager on April 19, 2018
Email this postTweet this postLike this postShare this post on LinkedIn

Only three months after AbbVie obtained a retrial of a case in which a jury had imposed $150 million in punitive damages without awarding any compensatory damages, a new jury awarded the same plaintiff $200,000 in compensatory damages and $3 million in punitive damages.

As Andy Frey and I discussed in our post about the initial verdict, the plaintiff in the case alleges that he suffered a heart attack as a result of using AndroGel, a treatment for low testosterone. The jury found that AbbVie was negligent but found against the plaintiff on his fraudulent misrepresentation claim.

Not counting the original verdict, which was overturned in December, this is the second disproportionate punitive award imposed against AbbVie in litigation supervised by the same district court. The other punitive award is much higher ($140 million) and even more disproportionate (1,000 times the compensatory damages).  The district court has still not ruled on the post-trial motions in that case.

What I said in my post about the $140 million award applies equally to the smaller, but still disproportionate exaction in this case. Given that there are roughly 4,000 cases against AbbVie raising similar claims, a punitive award of $3 million—and a ratio of 15:1—can be constitutionally permissible in this case only if the same ratio, and an aggregate punitive exaction of $12 billion, would be appropriate punishment for the effects of AbbVie’s conduct on all AndroGel users.

Even if this jury had found AbbVie liable for fraudulent misrepresentation, the notion that a $12 billion exaction is appropriate for the marketing of a product that has helped many more men than it has allegedly injured would be implausible. But the fact that the jury exonerated AbbVie of fraudulent misrepresentation and found it liable only for negligence should eliminate even the slightest doubt that a $3 million punitive award and a 15:1 ratio are impermissible in the case of this one plaintiff.

This case is a textbook illustration of the need for low ratios (lower than 1:1) when thousands of plaintiffs raise claims arising out of the same product. Let’s hope that the district court gets the point.

Photo of Evan M. Tager Evan M. Tager

Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown’s Washington, DC office. Identified by Chambers USA as one of America’s leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate…

Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown’s Washington, DC office. Identified by Chambers USA as one of America’s leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate lawyer, Evan has been integrally involved in a range of issues of paramount importance to the business community, including punitive damages, class certification standards, admissibility of expert testimony, and enforceability of arbitration agreements.
Read Evan’s full bio.

Read more about Evan M. TagerEmail
Show more Show less
  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Guideposts
  • Organization:
    Mayer Brown

LexBlog, Inc. logo
Facebook LinkedIn Twitter RSS
Real Lawyers
99 Park Row
  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service
  • Products
  • Blog Pro
  • Blog Plus
  • Blog Premier
  • Microsite
  • Syndication Portals
  • LexBlog Community
  • Resource Center
  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center
  • Blogging 101

New to the Network

  • Tennessee Insurance Litigation Blog
  • Claims & Sustains
  • New Jersey Restraining Order Lawyers
  • New Jersey Gun Lawyers
  • Blog of Reason
Copyright © 2025, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo