As the first bellwether trial among a group of nearly 2,600 federal lawsuits alleging that the use of Actos put patients at risk of developing bladder cancer proceeds a judge has found the medication’s manufacturer in violation of an important evidence rule.
U.S. District Court Judge Rebecca Doherty ruled in favor of lawyers representing the plaintiffs who argued their rights to a fair trial had been compromised by Takeda Pharmaceutical’s actions in failing to preserve evidence.
Actos (pioglitazone) is a top-selling Type 2 diabetes drug that has been the subject of health concerns over links to bladder cancer. The FDA issued a health advisory warning that use of Actos for more than one year “may be associated with an increased risk of bladder cancer.”
Victims in these federal cases are alleging that Takeda failed to warn them, other patients and health care professionals about the increased risk of developing bladder cancer through the use of the diabetes medication.
Takeda “clearly breached” evidence rules
Judge Doherty ruled that Takeda Pharmaceuticals “clearly breached” its responsibility to preserve and internal documents which might have addressed these concerns.
“Takeda admits it is unable to produce forty-six (46) custodial files of Takeda clinical employees and Takeda sales representatives. It is undisputed thirty-eight of these custodial files were deleted from the active Takeda servers after 2002,” the judge concluded in her ruling, according to the court file.
“It cannot seriously be questioned that, in fact, the missing files belonged to both high-ranking Takeda officials heavily involved in the development, sales, marketing and promotion of ACTOS, as well as rank-and file sales representatives whose day-to-day work involved marketing and distributing ACTOS in the marketplace.”
Plaintiffs’ attorneys had argued that Takeda officials tried to hide such documents and that their clients should have been granted a default judgment, which would have eliminated the need for trials.
Doherty denied the plaintiffs’ request for a default judgment but ruled that Takeda’s action would be fair game for plaintiffs’ attorneys to present to juries in upcoming trials.
More sanctions may follow
The judge also said she would consider whether to allow jury instructions favorable to the plaintiffs in regard to this issue or other sanctions to be allowed.
Judge Doherty is overseeing the hundreds of Actos bladder cancer lawsuits that have been assigned to her by the federal court system, which created the multidistrict litigation in the U.S. District Court for the Western District of Louisiana.
Multidistrict litigations are authorized when there are a large number of lawsuits from across the country that share common allegations against common defendants and are consolidated in the interests of judicial efficiency. Many such litigations eventually earn class-action designations.
In the case of the Actos bladder cancer multidistrict litigation the plaintiffs involved are claiming that Takeda’s failure to provide public disclosure of the increased risk of developing bladder cancer put many patients at risk.
The plaintiffs are seeking damages to compensate them for medical costs, pain and suffering and other expenses attributed to the development of bladder cancer in connection with treatment with Actos.
First test trial underway
The first bellwether trial from this litigation of federal lawsuits from across the country that were consolidated before Judge Doherty is underway.
In multidistrict litigations bellwether trials are selected from the larger pool of lawsuits as test cases, in which lawyers for the plaintiffs and defendants weigh the strengths and weaknesses of their case before juries.
The cases being overseen by Judge Doherty in the consolidated federal litigation in Louisiana are not the only Actos bladder cancer lawsuits in the court system.
Two other trials in state courts were held last year in which juries returned verdicts against Takeda Pharmaceuticals involving allegations that the medication can lead to bladder cancer in patients and both resulted in jury awards for plaintiffs but were set aside over legal technicalities.
In one case, a Maryland jury awarded $1.7 million to the family of a man who alleged that his use of Actos caused him to die of bladder cancer. That verdict was overturned after the judge found that the victim’s 30-year smoking habit contributed to his death.
The Maryland case was preceded by one in California where a jury found in April that Takeda should pay $6.5 million in damages over similar allegations, according to the court file in that case.
That award was overturned after the judge in the case ruled that the testimony of the plaintiff’s expert witness should not have been allowed.
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