Actos Bladder Cancer Settlements to be Pushed Before Bellwether Trial in MDL

The U.S. District Judge presiding over all federal Actos bladder cancer lawsuits will require the parties to discuss potential settlements in advance of a trial scheduled for next year, in which at least five different cases may be consolidated for trial before one jury.

There are currently more than 4,000 product liability lawsuits pending against Takeda Pharmaceuticals and Eli Lilly, which all involve nearly identical allegations that the companies provided inadequate warnings about the risk of bladder cancer from Actos, a popular type 2 diabetes drug.

Since December 2011, complaints filed throughout the federal court system have been centralized before U.S. District Judge Rebecca F. Doherty in the Western District of Louisiana, as part of an MDL, or Multi-District Litigation.

As part of the coordinated proceedings in the MDL, small groups of cases have been prepared for early trial dates, known as “bellwether” cases.

The first federal Actos trial ended in a landmark $9 billion jury award last year, after evidence was presented that indicated the drug makers destroyed evidence about the link between Actos and bladder cancer.

While Judge Doherty later reduced the punitive damage award in the case to $37 million, she indicated that the Supreme Court needs to update rules on what is considered excessive in order to effectively deter large corporations from engaging in the type of bad behavior exhibited by Takeda and Eli Lilly.

As a second group of cases are being prepared for trial to begin in May 2016, Judge Doherty issued a scheduling order (PDF) on February 23, which outlines the process for identifying cases that will participate in this bellwether trial.

Included in the schedule are several formal negotiation periods, where the parties will meet with a Special Master to discuss and explore potential Actos settlements.

The parties met with Judge Doherty today for a status conference, at which time progress on the claims was discussed with the Court, according to an agenda (PDF) posted on Monday.

Selection of Actos Cases for Trial

According to the plan outlined by Judge Doherty, a consolidated trial involving approximately five cases originally filed in the Western District of Louisiana will go before one jury beginning on May 2, 2016.

By early next month, the drug makers have been instructed to nominate a primary case for this first trial grouping, which can include any case filed in the Western District, so long as it involves significant exposure to Actos during the period between 2006 and 2011.

Following the selection of a primary case, each side will nominate three additional cases to be added to the trial pool.

Judge Doherty has outlined several important factors that the parties should consider when making their nominations, suggesting that, if it is possible, each group should include at least one smoker and one non-smoker, at least one person with a known genetic tendency toward bladder cancer and one individual without such known tendency, and at least one person with industrial exposure known to increase the risk of bladder cancer and one who has not had any such known exposure.

Following the submission of the nominees, the parties have been ordered to meet with a Special Master to discuss formal settlement regarding the cases included in the first trial nomination pool. A magistrate judge will also be available for mediation on any one case, or group of cases where appropriate.

By June 1, 2015, the Court will make a final designation of the cases that will be included in the May 2016 trial.

As the parties continue to prepare for that trial, several additional periods of formal settlement negotiations have been ordered by the Court.

While the outcome of this “bellwether” trial will not be binding on any other cases, the process is designed to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the Actos litigation.

In addition to the federal trial last year, a number of individual cases have gone before state court juries throughout the country, with multi-million damage awards returned in many of the cases. Most recently, Takeda was hit with a $3.6 million damage award in a Pennsylvania case, including $1.3 million in punitive damages designed to punish the drug makers.