In Re: Testosterone Replacement Therapy Products Liability Litigation

Filing 2113

CASE MANAGEMENT ORDER NO. 65 (rulings on motions to strike affirmative defenses in Owens v. Auxilium Pharms, Inc., Case No. 14 C 5180 and Holtsclaw v. Auxilium Pharms, Inc., Case No. 15 C 3941), signed by the Honorable Matthew F. Kennelly on 8/24/2017. (mk)

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: Testosterone Replacement
Therapy Products Liability Litigation
Coordinated Pretrial Proceedings
-------------------------------------------------------------This Document relates to:
Owens v. Auxilium Pharms, Inc.,
Case No. 14 C 5180
Holtsclaw v. Auxilium Pharms, Inc.,
Case No. 15 C 3941

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No. 14 C 1748
MDL No. 2545

CASE MANAGEMENT ORDER NO. 65
(rulings on motions to strike affirmative defenses in
Owens v. Auxilium Pharms, Inc., Case No. 14 C 5180
and Holtsclaw v. Auxilium Pharms, Inc., Case No. 15 C 3941)
MATTHEW F. KENNELLY, District Judge:
Currently before the Court are the plaintiffs' motions in two bellwether trial cases
to strike certain affirmative defenses asserted by Auxilium Pharmaceuticals, Inc. and
other defendants, which the Court will refer to collectively as Auxilium. Following
stipulations between the parties regarding a number of the originally-asserted defenses
that were challenged, each case has two affirmative defenses still at issue. In making its
rulings, the Court takes into account the particular procedural context, specifically that
these are bellwether cases that have been selected for trial.
1.

Owens case
Auxilium's affirmative defense 4 in Owens is an assumption-of-risk defense,

alleged as follows:
Plaintiffs had full knowledge of, accepted, and/or assumed all risks and
possible adverse effects related to the use of TRT products. Plaintiffs'

recovery, therefore, is barred, diminished, reduced, or offset under the
principles of assumption of the risk and/or informed consent.
Case No. 14 C 5180, dkt. no. 13, ¶ 4. This is insufficiently stated. Auxilium does not
have to plead its evidence, but it must describe how it contends plaintiffs became aware
of the risks in question. The defense is stricken, with leave to amend within seven days.
Auxilium's affirmative defense 22 states: "The Complaint fails to state facts
sufficient to sustain a claim for, or recover of punitive damages." Id., ¶ 22. The
insufficiency of a plaintiff's allegations is not an affirmative defense as Federal Rule of
Civil Procedure 8(c) uses that term. The defense is stricken. If Auxilium truly believed
the facts as alleged were insufficient to permit a punitive damages award, it could have
moved to strike the request for punitive damages, and if it contends the evidence is
insufficient to support an award, it can seek partial summary judgment. But it cannot
clutter the pleadings with a "defense" that is not really a defense but instead is an
argument about the insufficiency of the plaintiff's allegations or evidence.
2.

Holtsclaw case
Auxilium's affirmative defense 7 in Holtsclaw (in which Tennessee law evidently

governs liability) reads as follows:
The Complaint is subject to the limitations on the doctrine of strict product
liability for a purported design defect and breach of warranty as set forth in
the Restatement Second of Torts, Section 402A, comment k, where, as
here, the manufacturer properly warns of the risks of the medication. See
Witherspoon v. Ciba-Geigy Corp., 1986 WL 2138 (Tenn. Ct. App. Feb. 12,
1986).
Case No. 15 C 3941, dkt. no. 18, ¶ 7. The defense is deficient because it does not
identify the warnings upon which Auxilium relies. It is stricken, with leave to amend
within seven days.

2

Auxilium's affirmative defense 16 states:
In the event that Plaintiff recovers a verdict or judgment against
[Defendant], then said verdict or judgment must be reduced by those
amounts which have been paid or indemnified or will, with reasonable
certainty, be paid or indemnified to Plaintiff, in whole or in part, from any
collateral source including insurance, social security, workers
compensation or employee benefit programs, for the cost of any medical
care, dental care, custodial care, or rehabilitation services, or for any loss
of earnings or other economic loss, to the extent such reduction is
permitted under Tennessee law in a product liability action.
Id., ¶ 16. The Court strikes the defense because it is a boilerplate allegation, worded in
the hypothetical, with no factual content—in particular, identification of other sources
from which plaintiff actually has received benefits that Auxilium actually contends should
be offset. Auxilium has leave to amend the defense within seven days. The Court
declines to adjudicate at this point plaintiff's contention that the defense is legally
inapplicable. That issue may be asserted at a later appropriate time.
Conclusion
In summary, in the Owens case, defense 4 is stricken with leave to amend within
seven days, and defense 22 is stricken without leave to amend, and in the Holtsclaw
case, defenses 7 and 16 are stricken with leave to amend within seven days.
Date: August 24, 2017
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MATTHEW F. KENNELLY
United States District Judge

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