Actos Wrongful Death Claims Added as Plaintiffs Die of Bladder Cancer

As the Actos litigation continues to move forward in state and federal courts throughout the country, alleging that side effects of the popular diabetes drug caused plaintiffs to develop bladder cancer, a growing number of cases are being converted into wrongful death lawsuits as plaintiffs pass away.  

In the federal court system, all Actos bladder cancer lawsuits have been consolidated for pretrial proceedings before U.S. District Judge Rebecca H. Doherty in the Western District of Louisiana, where more than 2,500 cases are currently centralized as part of an MDL, or Multidistrict Litigation.

Over the past two weeks, at least three notices have been filed in the MDL regarding the amendment of complaints to add wrongful death claims, after plaintiffs who previously brought lawsuits in their own name died.

Most recently, on October 8, a Notice (PDF) was filed by attorneys for the family of David E. Smith, advising the court that Smith died on September 20, 2013. The lawyers indicate that a Motion will be filed to substitute parties by the personal representative of the estate and a Motion to Amend will be filed to add a claim for wrongful death, as well as a survival action.

Smith originally filed his complaint in December 2012, indicating that he was diagnosed with bladder cancer after using Actos for nearly 6 years. The lawsuit alleged that Takeda Pharmaceuticals withheld information about the risk of bladder cancer from Actos side effects.

On October 9, an Order (PDF) was issued granting a similar Motion to Amend filed by the family of Ronald Gregoria, who died on July 15. The family filed an amended complaint (PDF) on September 24, which indicates that Gregoria was diagnosed with high-grade muscle invasive bladder cancer in 2007, after he began using Actos to control his type 2 diabetes in 2005.

At least one other notice has been filed in recent weeks following the death of an Actos plaintiffs, with the family of William Novak filing a Motion (PDF) on September 27, asking for leave to substitute the estate as a party and to amend the original complaint to add a wrongful death action. According to the death certificate provided by the family, Novak died in May 2013 from cardio pulmonary arrest as a consequence of metastatic bladder cancer.

These cases highlight the effects of bladder cancer from Actos. While the five-year survival rate of bladder cancer if caught at its earliest stages is 98%. It declines rapidly the later the cancer is diagnosed, according to the National Cancer Institute. Diagnosis at Stage I leads to an 88% survival rate, Stage II diagnosis results in a 63% survival rate, Stage III diagnosis drops to a 46% survival rate and the five-year survival rate if the diagnosis does not come until Stage IV is only 15%.

Actos Bladder Cancer Risks

Actos (pioglitazone) is a type 2 diabetes drug that has been used by millions of Americans since it was introduced by Takeda in 1999. However, complaints allege that the drug maker failed to adequately research the medication or provide proper warnings to consumers or the medical community about the potential link between Actos and bladder cancer.

FDA officials began reviewing the potential risk of Actos bladder cancer problems in September 2010, after interim data from an on-going 10 year study found that users may face an increased risk the longer they take the drug.

Both France and Germany have already instituted an Actos recall, and many have called for the medication to be removed from the market in the U.S. because the risk of bladder cancer outweighs any benefits provided over other diabetes treatments. However, Actos has been allowed to remain available with stronger warnings.

Actos Litigation and Early Trial Dates

Over the past two years, a growing number of complaints have been filed in state and federal courts throughout the U.S. on behalf of former users who allege that they never would have used the medication if they had been provided adequate information about the risk of bladder cancer.

Recently, the first lawsuits have just started to reach juries, with at least two state court trials held so far this year. In April 2013, a California jury awarded $6.5 million in damages from Actos to Jack Cooper, but the judge subsequently reversed the award after excluding expert opinion testimony that linked the plaintiffs cancer to the diabetes drug. Last month, a Maryland jury awarded $1.5 million in an Actos wrongful death lawsuit brought by the family of Diep An, but that award was also overturned under a unique Maryland law because the jury found that An failed to exercise reasonable care for his own health.

In the federal court system, a small group of cases are being prepared for early trial dates, known as “bellwether” cases, which are designed to help the parties gauge how juries may respond to evidence and testimony that may be repeated throughout a number of cases. The first trials are expected to begin in January 2014.

The outcomes of these early trial dates may promote Actos settlement agreements in a large number of cases. However, if Takeda does not settle or otherwise resolve the litigation following the federal bellwether trials in the MDL, hundreds of individual cases may be remanded back to U.S. District Courts throughout the country for individual trial dates.