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After Multi-Billion Dollar Actos Decision, Juries Return Defense Verdicts

Only weeks after a federal jury awarded issued a $9 billion damage award in an Actos lawsuit over bladder cancer, juries in Las Vegas and Chicago have both separately returned defense verdicts in favor of Takeda Pharmaceuticals, finding that the popular diabetes drug did not cause those plaintiffs’ cancer.

Takeda Pharmaceuticals currently faces more than 7,000 product liability lawsuits pending nationwide, which all involve similar allegations that side effects of Actos increase the risk of users developing bladder cancer following long-term use of the diabetes drug.

Throughout the country a number of early Actos trials have been going before juries in state and federal court to help the parties gauge the strengths and weaknesses of their cases.

Last week, an Illinois state court jury in Chicago returned a defense verdict for Takeda Pharmaceuticals, finding that Actos did not bladder cancer suffered by William Whitlatch. The case involved a wrongful death claim brought by his widow and children.

That verdict was followed by another win for Takeda yesterday in Nevada state court, in a heated three month trial involving claims brought by Bertha Triana and Delores Cipriano. After the jury found that Takeda was not liable for the plaintiffs’ bladder cancer diagnosis, attorneys for the women indicated that they plan to seek a mistrial based on the inappropriate conduct of Takeda Pharmaceutical’s attorneys in the case.

Both District Judge Kerry Earley and plaintiff attorneys indicate that Takeda attorneys Kelly Evans and D’Lesli Davis repeatedly showed disrespect for the judge throughout the trial. The attorneys reportedly rolled their eyes at the judge, pointed at her and claimed she was getting overly emotional in open court.

In late April, Judge Earley admonished Takeda’s attorneys after the conduct occurred in front of the jury, advising the jurors that such actions were inappropriate and should be disregarded.

Prior Actos Trials

In the federal court system, where all lawsuits over Actos are concolidated as part of a multidistrict litigation (MDL) that is centralized in New Orleans, the judge presiding over the cases has also taken the drug maker to task for bad behavior during the litigation.

Earlier this year, U.S. District Judge Rebecca Doherty determined that Takeda had acted “in bad faith” during pretrial discovery, either negligently or intentionally destroying evidence relevant to the cases.

In the first of a series of federal bellwether trials planned in the federal Actos MDL, a jury returned a landmark verdict, awarding $1.5 million in compensatory damages over the development of bladder cancer. That jury also awarded an additional $9 billion in punitive damages designed to punish the drug maker for their failure to warn consumers and the medical community about the risks associated with the diabetes drug.

Following six Actos trials that have gone before juries, Takeda Pharmaceuticals has now successfully defended their blockbuster diabetes drug in five of the cases. However, at least two of the state court trials also ended with juries finding that Takeda should pay damages as a result of the failure to warn about the risk of bladder cancer. In both cases the judges presiding over the trial issued subsequent rulings that overturned the jury awards, providing Takeda with defense verdicts.

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. The jury found that Takeda failed to provide adequate warnings about the cancer risk. However, following post-trial motions, key expert witness testimony was excluded by the judge, resulting in a determination by the judge that a reasonable jury could not find that Cooper’s bladder cancer was caused by Actos.

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

Despite success at the state court level, the one federal trial that resulted in a $9 billion verdict may be signs of future trouble for Takeda in future MDL trials, as Judge Doherty has determined that juries in the federal cases will all be told of how the drug maker either neglected to save vital information or intentionally destroyed it. The so-called spoliation instructions have not been given to all of the juries at the state court level.

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