Actos Bladder Cancer Damage Award of $9 Billion To Stand

The U.S. District Judge presiding over all Actos bladder cancer lawsuits has denied a request by Takeda Pharmaceuticals and Eli Lilly to overturn a $9 billion jury award returned in the first out of thousands of federal cases to go to trial earlier this year.

In April, a federal jury determined that the drug makers should pay Terrance Allen and his wife $1.5 million in compensatory damages and another $9 billion in punitive damages, as a result of their failure to adeuqately warn consumers and the medical community about the link between bladder cancer and Actos side effects.

The case was the first federal “bellwether” trial held before U.S. District Judge Rebecca Doherty, who is presiding over more than 3,500 Actos cases that are consolidated as part of a multidistrict litigation (MDL). The lawsuits are centralized in the Western District of Louisiana for coordinated proceedings during discovery and a series of early trial dates scheduled to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the Actos litigation.

The punitive damage award was one of the largest ever in a pharmaceutical product liability lawsuit, designed to punish Takeda and Eli Lilly for recklessly endangering the lives of patients to make money, by withholding important information about the cancer risks with Actos.

Takeda Pharmaceuticals filed post-trial motions seeking to overturn the Actos verdict, requesting judgment as a matter of law or a new trial, arguing that the verdict was “so excessive as to per se demonstrate passion and prejudice.”

In an order (PDF) issued on August 28, Judge Doherty denied the drug maker’s request to overturn the verdict, indicating that the jury “acted within its role and discretion to attach whatever weight and make whatever reasonable inference it deemed appropriate when assessing the defendants’ conduct.”

Actos Litigation

Concerns about a potential link between Actos and bladder cancer emerged in 2010, leading to thousands of product liability lawsuits being filed nationwide against the drug makers by former users.

In addition to cases pending before Judge Doherty in the federal Actos MDL (Multidistrict Litigation), a large number of cases have been filed in various state courts throughout the country. At least four trials have already taken place at the state level, with conflicting results.

In May 2013, a California jury awarded $6.5 million in damages over Actos bladder cancer in a case brought by Jack Cooper, who was given an expedited trial date due to his grave health. However, following post-trial motions, that verdict was reversed after the state court judge excluded the plaintiffs’ expert witness testimony.

A second trial was held in Maryland state court in September 2013, which resulted in a jury finding that Takeda failed to adequately warn about the risk of bladder cancer from Actos and awarding $1.77 million in damages. However, the case resulted in a defense verdict for the drug maker under a unique Maryland law, known as contributory negligence, as the jury also found that the plaintiff failed to exercise reasonable care for his own health, which nullified the negligence of the drug maker.

A third Actos bladder cancer trial recently concluded in Nevada state court, which resulted in a defense verdict after the jury determined that both Actos and the plaintiff’s history as a smoker contributed to the development of bladder cancer. In that case, the plaintiff also ordered generic versions of Actos from online pharmacies, which raised questions as to whether Actos or unknown factors in the generic versions purchased online could have contributed to the development of the disease in that case.

Another trial involving two plaintiffs held in Las Vegas earlier this year also resulted in defense verdicts. However, that case, involving claims by Bertha Triana and Delores Cipriano, also resulted in plaintiffs’ attorneys calling for a new trial because of the conduct of Takeda Pharmaceuticals’ attorneys.

The outcomes of these early trial dates are being closely watched by those involved in the litigation, as they may influence eventual Actos settlement agreements to avoid the need to take thousands of cases before individual juries nationwide.