TESTOSTERONE MDL 2545 “ANDROGEL” JURY RETURNS $150 MILLION VERDICT IN PUNITIVE DAMAGES FOR “FALSE MARKETING” AGAINST ABBVIE WHILE FINDING NO FAULT IN “HEART ATTACK” CLAIMS

On July 24, a jury in Chicago federal court found in favor of plaintiff Jesse Mitchell, ordering drugmaker AbbVie to pay $150 million in damages for allegedly falsely marketing the benefits of its Androgel testosterone therapy drug, while not holding the company liable for a heart attack suffered by the plaintiff.  This was the second of bellwether trials in a massive class action involving thousands of claims against AbbVie and other drugmakers, including Eli Lilly and GlaxoSmithKline. The thousands of complaints have been consolidated by the country’s federal courts, and are being heard as a multi-district litigation Testosterone MDL 2545 AbbVie “Androgel” Briefcase,  under U.S. District Court Judge Matthew Kennelly in U.S. District Court for the Northern District of Illinois in Chicago.

 

 

 

 

 

 

 

 

 

Lawsuits dating to 2014, allege the testosterone replacement drugs were not only useless, but actually harmful, even though approved by the U.S. Food and Drug Administration to treat testosterone deficiency, the claims allege the companies also falsely marketed the drugs to treat a variety of other conditions, including diabetes, AIDS, cancer, depression and anxiety. The lawsuits further allege the drugmakers invented a nonexistent condition called “andropause” or “low T,” which could be treated by testosterone replacement.

However, plaintiffs claim the drugs are not only ineffective for these off-label uses, but they increase the risk of heart attack, blood clots and stroke.

Judge Kennelly selected eight of the cases to move forward to trial. The first bellwether trial, in which plaintiff Jeffrey Konrad, claimed Androgel caused a heart attack, ended in a mistrial in June.

This trial where Mr. Mitchell, of Oregon, similarly asserted the drug had caused his heart attack, proceeded to the jury in July and after days of testimony and arguments in court, however, the jury refused to find AbbVie responsible for Mitchell’s condition.

The jury did say they believed AbbVie had falsely misrepresented the benefits of its testosterone therapy drug to Mitchell, and ordered the company to pay punitive damages of at least $150 million.

A lawyer for Mitchell did not immediately respond to a request for comment from the Cook County Record on Monday.

In a brief emailed statement, a spokesperson for AbbVie noted “the jury found that Androgel did not cause any damage.”

“We expect the punitive damage award will not stand,” the statement said.

The verdict came over the strong objections of AbbVie, whose lawyers argued in court that they should not be held responsible for Mitchell’s condition or use of the drug.

In a motion for judgment filed July 17, the company noted even a doctor called by Mitchell’s attorneys conceded Mitchell was already at high risk for cardiac disease, without ever taking Androgel, because of his “several cardiac risk factors … including a 34-year smoking history, high blood pressure, high cholesterol, high triglycerides, obesity, a family history of heart disease, and lack of exercise.”

AbbVie also argued the jury could not find it had failed to warn of the risks of Androgel under federal rules and the company claimed the evidence demonstrated Mitchell had never heard of Androgel or any of its alleged “false claims” before his doctor prescribed it for him. And, AbbVie argued, Mitchell’s doctor “relied on his own training, experience and medical judgment, rather than anything said by (AbbVie), when making treatment decisions for Mr. Mitchell.”

“Finally, any suggestion that (Mitchell’s doctor) was somehow deceived or misled by (AbbVie’s) risk information is belied by the fact that he warned Mr. Mitchell of the potential cardiovascular risks,” with Judge Kennelly taking the motion “under advisement” on Friday, July 21 and subsequently denied. Resulting in the 2nd recent verdict against AbbVie, after having been found liable in the Depakote birth defect trial where the Illinois jury awarded $15 million to plaintiff Christine Raquel, after having been prescribed Depakote for bipolar depression.

Jesse Mitchell was represented the firms of Levin Papantonio Thomas Mitchell Rafferty & Proctor, of Pensacola, Fla.; the Alvarez Law Firm, of Coral Gables, Fla.; Seeger Weiss, of New York; Goldberg & Osborne, of Tucson, Ariz.; Heard Robins Cloud, of Santa Monica, Calif.; and Douglas & London, of New York.

AbbVie was defended by the firm of Dechert LLP, of Princeton, N.J.

Organizations Listed:

AbbVie
1 N Waukegan Rd
Lake Bluff, IL 60044

U.S. District Court for the Northern District of Illinois
219 S Dearborn St
Chicago, IL 60604

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Here’s Why Law Firm Social Media is a Waste of Time

By Jayne Navarre.

Attorneys were slow to catch the social media wave. But once it looked safe to go into the water—the firm next door was doing it—a majority followed.

  • Legal marketers got busy setting up a firm presence on Facebook and Twitter—featuring Super Lawyers, seminars, and seasons’ greetings.
  • Those with greater resources played with Instagram and Pinterest. The goal was to get likes, shares, and comments, with the reward being greater exposure and business opportunities.

But then something very disappointing happened. The “organic” social media produced by law firms—the stuff that was supposed to create conversation and conversion—appeared to be mostly seen and applauded by a handful of their own employees, lawyers, and a few real-life friends and relatives.

Don’t take my word on that, there is evidence.

According to the April 2017 Greentarget and Zeughauser Group survey, social media ranks at the bottom of “most valued content created by law firms.” That’s right, just 4 percent give a damn about your tweets and status updates.

Yet a whopping 91 percent of marketers, who were also surveyed, report they are “investing in social media”!


More attorneys are using digital and social media to reach clients and prospects. To discover if you’re outpacing your competitors, take the new 2017 Attorney Social Media & Digital Marketing Survey. It takes only 2 minutes.


To be fair to the 91 percent, marketing budgets differ from firm to firm. According to the April survey, blogs were seen as a “credible source of legal, business and industry news and information” by 75 percent of in-house counsel compared to 65 percent in 2015. But it is likely that many marketers consider blog writing, editing, posting, and maintenance to fall in a firm’s social media bucket, and thus the 91 percent. I hope I am not being generous.

Still, the April survey authors suggest that firms’ “methods for client alerts and newsletters are part of well-established practices, whereas [emphasis added] social media sharing and amplification is more time-intensive and expensive.” If true, it certainly begs the question: What are attorneys getting in return for their time and expense?

Kill organic social media for the enterprise

Avinash Kaushik blogs at Occam’s Razor. If you’re unfamiliar with his blog or the scientific rule of Occam’s Razor, here’s the essence: The simplest of competing theories are preferred to the more complex.

I assure you that he’s one of the good guys and someone attorneys should be listening to, on a variety of levels and topics.

More recently, Avinash challenged marketers to stop wasting enterprise resources on “organic social media”—defined as the kind where you post meaningful things about your firm to build brand loyalty. (And “hope” for increased sales to justify your efforts.)

He writes, “You can imagine how gosh darn excited I was at the advent of Facebook and Twitter (first real social networks). There were a billion people there, spending a meaningful amount of time on these wonderful platforms. Excitedly, brands could have a presence (a “page”) where they could give meaningful updates (info-snacks) to be a part of the organic conversations people were already having by the tens of millions. Daily meaningful brand connections would be converted into brand familiarity, shifts in brand perception, feeding brand loyalty. #orgasmic”

And goes on to say that: “None of the above transpired….”

How does he know? He says all the data you need to see, that your organic social media on Facebook and Twitter has tanked, can be found in three public bits of information. You don’t need to understand analytics, you don’t need to dig, you don’t need to hire a consultant. You just need to look.

Crunching the numbers

Hypothetically speaking, let’s say your Facebook page has 6,000 warm bodies who “like” you. (Probably a stretch for most law firms, but I’m going for a round number.)

  1. Applause Rate. Your most recent post—congratulating newly anointed Super Lawyers—has 50 likes or emotions (I heart this post!). Divide 50 by 6,000 to get your applause rate, which is…drum roll…a paltry .00833 percent. (“A painful stab in the heart.”)
  2. Conversation Rate. Now take the total number of comments on your post—seven—including “Congratulations,” “Well-deserved,” “He gets his work ethic from his mom!” and etc. Divide that by your universe of 6,000 warm bodies and your conversation rate is a glass shattering .00116 percent.
  3. Amplification Rate. This is the number that confirms whether you truly added value on a human scale or merely “pimped” your company. Let’s say you had three shares—one from a proud dad, one from a best friend, and one from the marketing manager who is paid to do it. Three divided by 6,000 is 0.0005%. Heart stopping, right?

With this simple analysis—the potential to engage 50 weeks +7 days +3 people per post—you can decide what part of your marketing budget you should allocate to your enterprise social media. The answer is zero.

Wait, you say that’s not fair? Alright, let’s add up the applause, conversation, and amplification rates on your Twitter and Instagram, and, being generous, your firm-branded blogs. Let’s compute the monthly, quarterly, and yearly totals. There, is that any better?

To be clear, marketing and enterprise brand building differs from business development (sales)— but, you need both. Arguably, a personal Facebook, LinkedIn, or Twitter presence in deft hands can be an effective tool for “networking” for business, but, it’s obvious to me that organic social media for the enterprise isn’t moving the needle—I’ve looked. (Please correct me if your firm is an outlier.)

Are your social media platforms useless? No, says Avinash. From an advertising perspective, the couple billion people on Facebook and hundreds of millions on other social channels are an audience that might be of value to your law firm. Should you kill your organic social strategy and switch to a paid social media strategy? Yes.

Buy advertising

Don’t waste your money on fuzzy organic social media goals. Buy advertising from Facebook. Buy advertising from Twitter, Instagram, and yes, LinkedIn. All of which can give your social media strategy purpose.

“Your [social advertising] strategy can drive short and medium-term brand and performance outcomes,” says Avanish, “You can set aside the useless metrics like impressions and 3-second video views. Set aside hard to judge and equally useless Like and Follow counts. Measure the hard stuff that you can show a direct line to company profit. Define a purpose for the money you are spending.”

I completely agree. In tests I’ve run on organic posts versus promoted paid posts, paid always outperforms. Sure, the click ratio on a paid post can be dismal—particularly if you’re not using best practices—but at least you are reaching a new audience. Even one inquiry from a potential client is a better result than a mom or brother liking your Super Lawyers post.

I suggest that you need a purpose, a strategy, and a plan. When you get that plan, then, you need great writing. Writing a brief is very different than writing something the public, even in-house counsel, wants to read. I know “we’re” getting better according to the April survey, but not quite very good is not where you want your law firm to be.


Jayne Navarre
Jayne Navarre

Jayne Navarre + Associates has more than 20 years’ experience working exclusively with law firms on strategy for content and communications. The company is forward thinking, entrepreneurial, and works with some of the best law firms, both in the U.S. and internationally. Contact 786-208-9108, jln@lawgravity.com, or http://jaynenavarre.com.

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A Closer Look at Advertising Response within a Guaranteed Cost Structure

The three co-founders of Amicus Media Group: George Young, Bill Tilley and Chad Nell.
The three co-founders of Amicus Media Group: George Young, Bill Tilley and Chad Nell.

By George Young, Partner, Amicus Media Group

In a world where consumers are presented with an overwhelming choice of television, radio, and online platforms, how can a law firm be assured that media time purchased to generate cases will perform? What if media time is purchased and no one calls or responds?  Performance media addresses ROI concerns, as this model to media depends on paying for the responsive results, instead of the media time itself.

Performance media addresses ROI concerns, as this model to media depends on paying for the responsive results, instead of the media time itself.

By taking a closer look at performance media, we can begin to understand why law firms use this model to reach potential clients at a guaranteed cost and improve profitability with less risk.

Performance Media as a Model of Predictability

Comparing the cost structure between different models of media buying, a more predictable model emerges through performance media campaigns. In the traditional model of dedicated media purchased for attorney advertising, the law firm provides a budget to the advertising agency for buying media time to drive calls or leads to the firm from people who have been harmed by a dangerous drug, medical device, or any other type of injury case.  The typical cost to media for generating a call will likely fluctuate from week to week, as media spot cost, call response, and other factors will ultimately affect the lead cost and unpredictably impact the campaign effectiveness.

While the performance model for attorney advertising similarly requires the law firm to provide a marketing budget to the media agency the key difference is that the cost to generate a call or lead from advertising is secured at a guaranteed rate for an actual response.  As the financial risk is shifted from the law firm to media, the onus to perform is placed squarely on the media running the campaign. The risk of budget burning for subpar results is mitigated for the law firm, due to the potential client response cost being known.  

As a clear example, consider the traditional media cash buying model of advertising where the law firm commits to specific times and networks and is required to pay for media time regardless whether the target audience responds. In contrast, if the same advertising spot runs as a national or regional performance campaign and no one responds, zero dollars are owed. Certainly, performance media offers a reliable model by guaranteeing a more predictable cost of advertising.

How and Why Networks offer Guaranteed Cost Structures

While only a few agencies can offer performance media, this type of advertising holds several key advantages for the networks as well as law firm advertisers.  Performance media provides stations the capability of adding revenue spots to the daily inventory of avails on demand, where they can fill unsold schedule openings, or replace last minute cancellations.  These media avails can be provided to law firms at a much lower cost compared to advertisers that buy specific media time slots.  Consequently, performance media allows networks to monetize inventory that historically would likely go unsold and therefore air non-revenue broadcasts such as public service announcements or promotional spots. Performance media offers a flexibility in programming that ensures every possible commercial break is monetized.

Where Performance Media Campaigns Work Best

Performance advertising is also called “Opportunity Media”, as television and radio networks may place the spot during any time of day where an open avail (opportunity) in their schedule exists.  As such, traditional prelogs (schedules indicating when spots are expected to run) and post logs (schedules showing when spots went live) are not provided by the networks.   Instead, each week the networks bill for the total number of calls or leads generated by the previous week’s advertising.   While performance marketing can deliver significant cost savings to law firms compared to specific advertising time purchased, there are instances where traditional media cash buy may propose a more reasonable option. An example where a traditional media cash buy might be strategic would include instances where a law firm requires complete control over spot placement or online display of the advertising.

Considerations when Launching a Performance Media Campaign:

Each year law firms across the country use performance media to save millions of dollars in acquiring mass tort, personal injury, and other types of cases.  

Performance Media Attributes include:

  • Campaign Launch Timeline:  Expect about 2 weeks to get the phones ringing and 4-6 weeks for full call volume to emerge.  
  • Refundable Deposit:  A refundable deposit is typically held on account equal to about three weeks of billing.
  • Billing:  Television networks bill each Monday for the previous week’s calls/leads. The marketing agency remits same day payment.   
  • Cancellation: 21-day notice is required to pull a campaign for any reason.

Another necessary consideration for the success of either a traditional cash buy or performance media advertising campaign is managing the intake of audience responses. Although most of the avails (and thus most of the calls and leads) will be generated during daytime hours, and correspond with operating hours of the law firm, the intake center activity extends beyond business hours.  Commonly, the law firm engages a 24/7/365 legal intake call center solution, as potential clients often see or hear an advertisement during the daytime hours, and later decide to respond by calling at any time of day or night.

For competitive law firms, performance media provides a cost-effective solution for finding new clients through a marketing channel that removes much of the risk of lead generation performance from the law firm and shifts the risk of results directly to media. Its unique combination of scalability, favorable cost per intake economics and predictability makes it a powerful strategy in the face of fierce competition for case acquisition.


AMICUS MEDIA GROUP, LLC

Amicus Media Group is a full-service media agency comprised of some of the nation’s most respected professionals in media, communications, marketing, finance, and practice management to offer law firms the highest level of expertise in case acquisition and practice growth. 

Amicus Media Group offers direct response marketing services for lead generation campaigns. Agency services span from negotiating rates, broadcast planning and scheduling, media buying, campaign management, performance marketing, intake and creative production. Holding key relationships with top media executives throughout the nation, Amicus Media Group establishes a combined multi-decade prowess in legal marketing.  

To contact Amicus Media Group call (888) 700. 1088 or email George Young at GeorgeYoung@AmicusMediaGroup.com or Chad Nell at ChadNell@AmicusMediaGroup.com

 

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Slides & Recording for Webinar: Mass Torts Update for Plaintiff Attorneys

5 Mass Torts for Plaintiff Attorneys Today

Broadcast August 31, 2016

Visit http://goo.gl/rOG9qt to see the slides and recording of this program.

John Ray
John Ray

What you will discover

For lawyers starting a Mass Torts practice, picking the right cases and having an effective law firm marketing campaign are essential. Our presenter John Ray will update plaintiff attorneys about 5 key Mass Torts:

  • New Pradaxa docket in Connecticut
  • IVC Filter
  • Xarelto
  • Fluoroquinolone antibiotics
  • Emerging: Roundup litigation

A Mass Tort is ordinarily a product liability case where hundreds of plaintiffs file suit against a pharmaceutical company. These cases are typically collected into one of 300 federal multi-district litigation dockets (MDLs).

Mass Torts is a multi-billion dollar immature market, with economies of scale and only a single barrier to entry. You have already overcome the barrier if you are admitted to practice law.

About our presenter

John Ray has been a leading consultant to the Mass Tort attorneys for more than a decade. His unique skill sets make him well suited to both teaching and consulting in the Mass Tort arena.

He graduated Magna Cum Laude from Brenau University in Atlanta and started a pharmaceutical and medical device company right out of school, selling it in an eight-figure deal when he was 35.
John’s tenure in the pharmaceutical and medical device field allowed him to gain an in-depth understanding of FDA regulatory matters, as well as, a thorough understanding of the science and epidemiology related to gaining FDA approval to market pharmaceuticals and medical devices. John’s inside knowledge of how “Big Pharma” operates gives him a unique perspective and skill sets that are very useful to Mass Tort plaintiff firms.

When John brought his “insider knowledge” and business acumen to the Plaintiff Mass Tort space, one of the first things he recognized was a lack of common terminology and well-defined metrics. John realized that firms were expressing the same concepts, but were not using the same terminology. As a result, John set out to define common terms and create methods for formulating important metrics for use by Mass Tort firms when evaluating litigations. The terminology and metrics John Ray developed are now commonly used by major Mass Tort Law firms.

John is highly sought after and writes sought-after white papers about both current and emerging torts. The accuracy of his analysis of emerging and ongoing litigations is unmatched.

The fact that John not an attorney has proven to be an asset. John thinks like a business person, employing creative problem solving and possesses an extensive set of business skills and industry-specific knowledge. He assists Mass Tort firms in making sound business decisions before and during any litigation they are involved in or are considering becoming involved in.

John is an expert at evaluating cases and looks at each tort as an individual “investment,” which can be quantified resulting in risk mitigation for you and your firm.

Contrary to popular belief, adding Mass Torts to your practice is not gambling, nor is there a secret society of Mass Tort attorneys. The only information you lack to be successful in the practice of Mass Torts is a business plan. As John says, this type of law is 80% business and 20% law. If you understand the business principles of Mass Tort law, you will be successful.

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When Should Mass Tort Marketers Change Strategy?

ntl-summit-tsg-presentation-2-3-2016-2-638Adam Warren of The Sentinel Group® in Temecula, CA, published an article saying it is crucial for attorneys to understand the ever-changing landscape of advertising and to keep a strong base of available TV time to generate lead/case acquisition flow.

“We have found tried and true strategies can fall short when developing mass media and local media plans for many mass tort campaigns and other single-event cases this year. Where we have overcome this challenge is having the ability to move quickly and precisely allowing us to pivot to alternative media strategies that are still efficient and cost-effective,” Warren says.

“Identifying fragmentation and TV programming changes per major events can be your next epic media win if you already have your pivot move in place. Make sure your marketing firm maintains a diverse breadth of experience and media portfolio and change will be your friend.”

Click to read more.

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Performance Marketing…When Economics Collide

The Sentinel GroupBy Adam Warren of The Sentinel Group®, Temecula, CA.

If you are deep into mass tort marketing or other forms of legal marketing such as single-event cases, there is no doubt that you have either tried or have been pitched on performance-driven media. There is a special attraction for law firms to this type of business that creates potential plaintiffs from phone calls on a fixed rate per call basis.

Yet, in this instance, you are not paying for the media spots that clear, but rather the phone calls you receive that reach the billable formula. Performance exists within some of these familiar metrics ranging from cost per call, cost per acquisition, cost per lead and so on.

Two different languages

Law firms and marketing firms are typically speaking two different languages when it comes to performance marketing techniques and law firm case acquisition ambitions. Why does a law firm care about the cost per call? Well, truth is they don’t! Further clarifying, they do not care about the cost per call as long as their cost per packet goals are met.

However, it is a conversation that the marketing firm must have in order to find an agreeable financial arrangement with media to secure ad inventory across various media inclusive of TV, radio, print or digital. What do the law firms care about? They care about their cost per packet out!

How do we make sense of these conversations when they collide? It is important that the marketing firm you choose understands the divide between packet- and call-based economics and how the come together when using the right firm. Whether you are talking about IVC, Xarelto, talcum powder, Nexium or single event catastrophic injury, the conversation that needs to take place is how you get to the packet cost while satisfying the media with the cost per call or other common media metrics. Sounds simple? Well, it can be.

An experienced marketing firm should have the technology to monitor call occurrences and tracking by 800 number. Information that can be derived from call occurrences includes but is not limited to the caller ANI (auto number identifier), zip code, media origin, intake quality control, listening features and so on. If technology is not at the core of the campaign, this marriage is close to impossible to achieve.

Campaign ROI

Firms should also understand how pricing can fluctuate and ways in which campaign ROI can be maximized to the media and the law firm client. If you wish to have an ongoing and scalable campaign, you must understand how to create wins on both sides of this coin. Data is an ever-moving target and it is imperative that data drives decisions.

If your marketing firm is not data-centric, how will they know what media bolsters the packet cost objectives vs. plummeting it? Does your marketing firm offer quality control? How will the marketing firm identify poor performing media or 800 numbers or protect you from spam and wrong dials? Not knowing how to spot potentially damaging campaign data that can quickly tank your packet costs makes it impossible for the law firm and marketing firm to come together on the mutual objective of marrying the performance economics with the packet economics.

Buyer beware! There are a lot of false guarantees and impossible promises out there in case acquisition. If it sounds too good to be true, it probably is! Make sure your firm of choice not only understands the case and your objectives but also has the means to execute from data to distribution to achieve your objectives and merge the economics of different languages to proceed in a decisive and informed manner.

For further information:

LinkedIn: https://www.linkedin.com/company/10699941
Contact Phone: 800.TSG.Tort (800.874.8678)

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Amicus Media Group Helps Mass Tort Firms with Legal Marketing

investmentValencia, California, August 2, 2016 — Amicus Media Group is stepping up the legal marketing game with new services, tools, and strategies designed to specifically target potential clients through savvy media campaigns across television, radio, mobile, and digital. With its unique media connections and resources, law firms in areas such as Mass Tort, personal injury, family law, employment law, and emerging practice areas are able to increase return on investment from marketing.

Using decades of collective experience in the legal marketing and finance space, Amicus Media Group gives law firms the ability to more effectively invest in marketing to connect those that have been injured or harmed with those that can help utilizing focused and cost effective marketing.

Amicus Media Group leverages for its client’s powerful relationships with national and local television and radio networks, as well as key providers of web-based lead generation.  These relationships translate into superior rates and lower cost per case acquisition metrics.

For law firms looking to expand brand awareness, Amicus Media Group will deliver a media strategy reaching an astounding 85 percent of households through national television. Because the majority of Americans consume more than 4 ½ hours of television per day, such media exposure proves essential to reaching hundreds of thousands and/or millions of consumers.  Radio is also one of the most engaged news and entertainment mediums in the country, economically delivering a targeted audience and excellent case acquisition.

Put the power and resources of Amicus Media Group to work for your law firm today! More information is available by phoning 888-700-1088 or by e-mail at info@amicusmediagroup.com

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