Actos Documents Relevant to Lawsuits Intentionally Destroyed: Judge

The federal judge presiding over all Actos bladder cancer lawsuits has determined that Takeda Pharmaceuticals intentionally deleted or destroyed documents and other evidence that were relevant to the thousands of product liability lawsuits filed against the drug maker over it’s popular diabetes drug.  

On June 20, U.S. District Judge Rebecca Doherty issued a ruling (PDF) that determines that Takeda Pharmaceuticals has acted in bad faith during litigation involving claims that the drug maker failed to warn about the risk of bladder cancer from side effects of Actos.

Takeda Pharmaceuticals currently faces more than 3,000 product liability lawsuits filed by individuals throughout the United States. Cases filed in the federal court system are all consolidated before Judge Doherty in the Western District of Louisiana for coordinated pretrial proceedings and a series of early “bellwether” trials.

The ruling comes months after Judge Doherty first found that Takeda failed to properly preserve evidence, and provided a permissive jury instruction on the destruction of evidence during the first Actos bladder cancer trial in the federal multidistrict litigation (MDL). However, Judge Doherty deferred further actions until additional information was reviewed.

That trial resulted in a massive $9 billion damage award in a case brought by Terrance Allen, who alleged that the makers of the diabetes drug Actos withheld information from consumers and the medical community about the risk of users developing bladder cancer.

In a detailed opinion that provides supplemental reasons for the Court’s determination, Judge Doherty indicates that there is enough evidence to clearly demonstrate that Takeda’s evidence destruction was intentional.

Takeda has been ordered to continue working to reconstruct all deleted files and to complete a timeline and review process for oversight by the Court. Until that process is completed, the Court has deferred a final ruling for sanctions, including a determination of attorney fees arising out of the drug maker’s conduct.

Judge Doherty said that plaintiffs’ attorneys have presented evidence and testimony that leads her to conclude that “Takeda deleted that information; the information deleted is relevant to Plaintiffs’ claims in the multidistrict litigation; the absence of that information is prejudicial to Plaintiffs in the MDL; Takeda intentionally deleted the information; and that Takeda did so with bad faith.”

Besides intentionally destroying evidence, Takeda also put forward witnesses and experts who had no knowledge of the company’s procedures in efforts to muddle things further, the judge ruled. She pointed out a deposition done in August and September 2013 regarding spoliation of evidence.

The Plaintiffs Steering Committee, a group of plaintiffs’ attorneys serving in leadership roles in the Actos litigation, warned that the witness was a “hired gun” whose job it was to prevent the release of information ordered by a magistrate judge.

“Only one witness was selected by Takeda and presented as the designated representative of Takeda and that witness had no personal or first-hand corporate knowledge of any kind of any of the topics about which he was questioned,” Judge Doherty determined.