The first federal trial involving an Actos bladder cancer lawsuit is coming to a conclusion after 33 days of trial, with the jury scheduled to hear closing arguments on Monday before deliberations begin.
Trial began on February 3 in a case brought by Terrance Allen, which was selected as the first “bellwether” case in the federal multidistrict litigation (MDL) established for all product liability lawsuits filed throughout the federal court system involving allegations that plaintiffs developed bladder cancer from Actos side effects.
There are currently about 3,000 cases pending in the Actos MDL, which has been centralized before U.S. District Judge Rebecca Doherty in the Western District of Louisiana for coordinated pretrial proceedings. The trial is the first in a series of “bellwether” trials designed to gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation.
Just days before the trial began, Judge Doherty ruled that Takeda Pharmaceuticals, the manufacturer of Actos, acted in bad faith during the discovery process, ordering that juries can be told that the drug maker hid or destroyed information that should have been preserved for the cases. The first witness called to the stand by the plaintiffs was Stacey Calahan, Assistant General Counsel for Takeda, who testified regarding the spoliation of evidence issues.
Takeda Pharmaceuticals has defended the case, claiming that Allen’s bladder cancer was not caused by his use of Actos. The last witness called by the drug maker this week was Dr. Lewis A. Chodosh, who testified that bladder cancer developes over the course of decades and that the risk increased dramatically with age. On cross-examination, Dr. Chodosh admitted never having published any papers on bladder cancer and having a focus primarily on breast cancer. Dr. Chodosh also said he had been paid $1 million to testify as a defense witness in breast cancer cases over the last nine years.
After the defense rested on Thursday, both sides called for summary judgments, and Takeda Pharmaceuticals also called for the judge to block attempts by the plaintiffs to seek punitive damages designed to punish the drug maker for failing to warn about the risk of bladder cancer from Actos. Judge Doherty denied all of those motions.
Closing arguments are scheduled to begin at 9 a.m. on Monday.
Actos (pioglitazone) is a type 2 diabetes drug that has been used by millions of Americans. Concerns emerged in 2010 about a potential link between Actos and bladder cancer, leading to thousands of product liability lawsuits being filed against the drug makers for failure to adequately research the medication or provide sufficient warnings to consumers and the medical commuity.
In addition to cases pending before Judge Doherty in the Actos MDL, a large number of cases have been filed in various state courts throughout the country. At least three 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.
Following a series of bellwether trials that are scheduled in the federal MDL, if Takeda fails to reach Actos settlement agreements to resolve a large portion of the litigation, Judge Doherty may begin remanding hundreds of individual cases back to the U.S. District Courts where they were originally filed for separate trial dates throughout the country.
Another state case is currently underway in Las Vegas. The case involves claims by two different plaintiffs who say they developed bladder cancer as a result of taking the drug.