Friday, April 24, 2015 - A group of Testofen lawsuits seeking multidistrict litigation certification have been denied centralization by the Judicial Panel on Multidistrict Litigation. The original motion for certification was filed in January and pursued consolidation of the lawsuits in the District of Massachusetts.
Testofen, the drug at issue in the lawsuits, is a testosterone supplement that employs fenugreek seeds as the main active ingredient affecting testosterone levels. In addition to increasing a man‘s testosterone, Testofen was also marketed as an aid to assist in gaining muscle mass and supporting libido. The risks involved in taking Testofen include increased risk of suffering a stroke or heart attack, including alleged connection to additional cardiovascular complications.
Plaintiffs originally filed a complaint against the defendants in May of 2014, claiming they fraudulently marketed clinically proven products including Testofen for the means of boosting testosterone levels. Their filing referenced numerous studies that refuted the defendant‘s claims that the fenugreek seeds from which the Testofen drugs derived their testosterone boosting abilities were effective in regards to their their advertised application. The studies referenced displayed fenugreek having no affect on male testosterone levels.
The lawsuits take aim at GNC and Gencor as primary conspiratorial distributors and Force Factor LLC as the manufacturer of the drug. However, the two actions took aim at the distributors and manufacturers separately, a main reason the lawsuits were ultimately denied certification. One action originated in California names GNC and Gencor, along with more than a dozen other companies, as distributors allegedly involved in the false marketing of Testofen. The other action, which began in Massachusetts, takes aim solely at Force Factor LLC.
More than 22 products named in the lawsuits list Testofen as an ingredient. While Testofen products are officially listed as supplements, which are not required to pass FDA-approval before they are available for purchase, the FDA has investigated the ties it has with cardiovascular issues.
While the action from California originally brought the motion for certification, the Massachusetts lawsuits opposed the combining of the suits along with all the defendants in the case. There are many class action lawsuits that have been filed against the manufacturers and marketers of Testofen boosters, however only two were included in this motion for certification.
Another reason given in the order of denial referenced the size of the request, stating that the lawsuits were not transferred in part because there were only two actions requesting centralization. While the panel acknowledged that there were common questions of fact shared between the lawsuits, the minimal amount of actions needed to file for certification necessitated a higher burden of proof to be transferred. The JPML ruled that that burden was not met, and the two actions would proceed independently of one another.
Class action lawsuits alleging pharmaceutical malpractice in regard to testosterone supplements and therapy have been taking place regularly throughout the country. One of the contemporary lawsuits concerning the testosterone drug Androgel contained more than 1,100 lawsuits pending in multidistrict litigation as of April 1. Though the Testofen lawsuits did not become transferred into an MDL, plaintiffs still stand a chance at recovering damages in their original districts as the lawsuits were not dismissed and only denied certification.