Discovery in Tepezza Lawsuits Gets Heated, As Drug Maker’s Lawyer Accused of Misconduct During Depositions

As discovery continues in Tepezza hearing loss lawsuits being pursued against Horizon Therapeutics, an attorney for the drug maker has been accused of engaging in disruptive behavior during depositions, which plaintiffs’ lawyers claim was designed to interfere with key testimony.

Horizon currently faces more than 170 product liability lawsuits, each raising similar allegations that the drug manufacturer failed to warn the medical community and users that the thyroid eye disease drug could cause permanent and irreversible hearing damage.

Although Tepezza infusions were originally intended as a niche treatment for a limited population of patients, Tepezza profits doubled during the second year the drug was on the market in the United States, with sales reaching $1.66 billion. However, lawsuits allege that the drug maker placed a desire for profits before consumer safety, by aggressively marketing the treatment without disclosing that some users may experience hearing loss from Tepezza side effects.

Last year, given common questions of fact and law raised in complaints brought throughout the federal court system, a Tepezza MDL (multidistrict litigation) was established in the U.S. District Court for the Northern District of Illinois under Judge Thomas Durkin, who is overseeing coordinated pretrial proceedings.

While a growing number of lawsuits continue to be filed, Judge Durkin has directed the parties to prepare a small group of cases for early “bellwether” trial dates, which are intended to help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout large numbers of other claims.

As part of the discovery process, plaintiffs’ lawyers representing individuals left with hearing loss from Tepezza have scheduled a series of depositions of key witnesses, including employees working for Horizon, to gather information needed to prepare the claims for trial. However, those interviews were recently cut short, after things got heated between the lawyers.

On October 30, the Plaintiffs’ Leadership Committee (PLC) filed a motion (PDF) asking the Court to address what they say was improper deposition conduct by Horizon’s lawyers, focusing on conduct during a deposition of Nicole Potthast, who was Horizon’s Director of Regulatory Affairs leading up to the approval of Tepezza by the U.S. Food and Drug Administration.

“During Ms. Potthast’s deposition, Horizon’s counsel engaged in witness coaching, speaking objections, incessant foundation objections, unnecessary colloquy, and generally uncivil conduct,” the PLC motion states. “An egregious example occurred when the PLC attempted to examine the witness regarding draft minutes for a meeting she attended. Before the PLC even asked a question, Horizon’s counsel interjected that ‘[t]his is a draft exchange between two other people, so there’s no evidence that she saw this document that’s attached.’ The barrage of objections continued, even after the deposing attorney pointed out that (1) he had not yet asked a question, (2) Horizon was coaching the witness, and (3) the document had her name on it despite Horizon’s representations otherwise.”

The PLC claims that, in addition to coaching Potthast through the deposition, Horizon’s attorneys were wasting the limited time allotted for plaintiffs to conduct depositions. As a result, they called for the court to intervene and impose more stringent deposition rules, or appoint a special master to oversee the depositions of Horizon employees.

Following a hearing before U.S. Magistrate Judge M. David Weisman on Thursday, an order (PDF) was issued on November 1, finding that the deposition conduct by Horizon’s lawyers crossed the line.

“In short, defense counsel’s objections (and other conduct) were obstructionist and not well-founded,” wrote Judge Weisman. “[A]fter viewing the video clips provided by PLC in their totality, the Court finds that Mr. Johnston’s behavior was hyper-aggressive and his objections were clearly obstructive, including objecting to clearly foundational questions based on lack of foundation or speculation. There are other observations that could be made, but the Court believes the point is made.”

While the Court did not impose any specific sanctions, the parties were encouraged to work together to reschedule remaining depositions and maintain a tighter discovery timeline in preparing the claims for trial.

November 2024 Tepezza Lawsuits Update

Early in the MDL proceedings, Judge Durkin established a Tepezza “bellwether” program, where a group of 12 representative cases were selected to go through case-specific discovery and preparations for early trial dates, which are currently scheduled to begin in March 2026.

Plaintiffs selected four of the bellwether lawsuits over Tepezza and hearing loss, with Horizon Therapeutics selecting another four and the Court randomly selecting the final four.

The close of fact discovery for the 12 selected cases has been set for December 20, 2024, and the parties are expected to propose the first four bellwether trials by January 17, 2025.

While the outcome of these early bellwether trials will not have any binding impact on other claims presented in the litigation, the average Tepezza lawsuit payouts awarded by juries are likely to have a large impact on settlement negotiations between the parties.

Leading up to the first trial date, the parties have been directed to participate in a series of Tepezza settlement talks, which are being held every quarter to explore a potential resolution for the litigation.

Following the early trial dates in the MDL, if the parties fail to reach Tepezza hearing loss settlements or another resolution for the litigation, Judge Durkin may begin remanding individual cases to U.S. District Courts nationwide for separate trial dates in the coming years.