Jury Awards $1.7M for Cancer from Actos, But Defense Verdict Entered

In the second trial out of more than 3,000 Actos lawsuits pending nationwide, a Maryland jury found that Takeda Pharmaceutical’s failed to adequately warn physicians about the risk of bladder cancer from their popular diabetes drug and awarded nearly $1.77 million in damages. However, under an uncommon Maryland law, a defense verdict was entered because the jury also found that the plaintiff contributed to his cancer diagnosis.

Following three weeks of trial and two days of deliberations in the Circuit Court of Maryland for Baltimore City, a jury found that Takeda’s negligent failure to warn about the the possibility of bladder cancer from Actos side effects was a substantial factor in Diep An’s cancer diagnosis and death. However, they also found that Mr. An failed to exercise reasonable care for his own health, which invalidated the damage award under Maryland’s contributory negligence law.

Diep An began using Actos in 2007 and was diagnosed with bladder cancer in September 2011, which ultimately resulted in his death from the disease in January 2012. The family filed a wrongful death lawsuit against Takeda, alleging that the drug maker failed to adequately warn consumers or the medical community about the link between Actos and bladder cancer.

According to allegations raised during the trial, Takeda knew or should have known about risk of bladder cancer before the drug was introduced in 1999. However, information about the cancer risk was not added to the warning label until 2011, after An had been using the medication for several years.

At trial, Takeda’s attorneys defended the safety of their popular diabetes drug and argued that An’s prior smoking habit contributed to his death. Under Maryland’s pure contributory negligence law, if a plaintiffs’ own negligence contributes in any way to the harm claimed, they are barred from obtaining any recovery.

Although the Maryland jury found that Takeda negligently failed to adequately warn about the known risk of bladder cancer with Actos use, and that this failure to warn Mr. An’s physicians was a substantial factor in causing his cancer, the jury’s award of $1,765,000.00 in compensatory damages was invalidated, including $625,000 awarded to Mr. An’s estate, $540,000 awarded to his wife for loss of consortium and $600,000 awarded to his three children for wrongful death.

The damage award was overturned because the jury also found that Mr. An “failed to exercise reasonable and ordinary care for his own health and safety.”

However, Maryland is one of only a handful of states that still apply pure contributory negligence in tort cases, which means that the damage award likely would have stood if it went to trial in another state.

Actos Bladder Cancer Lawsuits

Actos (pioglitazone) is a type 2 diabetes drug that has been used by millions of Americans, but thousands of product liability lawsuits have been filed nationwide over the past three years after concerns emerged about a connection between bladder cancer and Actos in September 2010.

The An family’s case was at least the second Actos trial to reach a jury in the United States, with a California jury awarding $6.5 million in damages from Actos in April, involving a case brought by Jack Cooper. However, the judge presiding over that case subsequently reversed that damage award after key expert witness testimony was thrown out.

In the federal court system, more than 2,500 complaints are centralized for coordinated handling in an Actos MDL, or multidistrict litigation, which is centralized before U.S. District Judge Rebecca H. Doherty in the Western District of Louisiana. A small group of cases in the MDL are being prepared for early trial dates, which are expected to begin in January 2014.

In complex pharmaceutical litigation, where a large number of lawsuits are brought involving similar injuries caused by a prescription medication, these early trials are often used to gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation. Therefore, despite the two defense verdicts obtained by Takeda, the fact that both juries found that the drug maker failed to adequately warn about the Actos bladder cancer risk and awarded substantial damages may facilitate further settlement negotiations.

Following the early trial dates in the federal MDL, if an Actos settlement agreement or other resolution for the litigation is not reached, Takeda could begin facing hundreds of individual trial dates in courts throughout the United States.