In the federal court system, where all Actos Lawsuits have been consolidated into a multidistrict litigation (MDL) in Louisiana, the judge overseeing the cases has repeatedly taken Takeda Pharmaceuticals to task for bad behavior. All of the lawsuits in the MDL were filed on behalf of people who were diagnosed with bladder cancer after taking Actos, and allege that Takeda failed to adequately warn of this risk.
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Actos Multidistrict Litigation
In Early 2014, Judge Rebecca Doherty determined that Takeda Pharmaceuticals had acted in “bad faith” during the pre-trial discovery phase of the litigation, either negligently or intentionally destroying evidence relevant to the Actos bladder cancer lawsuits.
In the first bellwether trial in the Actos MDL, a jury returned a landmark verdict, awarding $1.5 million in compensatory damages over bladder cancer injuries. The same jury also awarded $9 billion in punitive damages intended to punish Takeda for their failure to warn the public and the medical communities about the risks associated with the medicine.
To date, a total of 6 Actos trials have gone before juries; Takeda has successfully defended itself in 5 of the cases. However, at least 2 of the state court trials also ended with juries determining that the company should pay damages for failing to warn about the link between Actos and bladder cancer. In both cases, judges issued subsequent rulings that overturned the jury awards, giving Takeda defense verdicts.
In May of 2013, a jury in California awarded Jack Cooper $6.5 million after finding that Takeda failed to provide adequate warnings about the Actos cancer risk. However, following post-trial motions, certain expert witness testimony was excluded by the judge, resulting in the determination that a reasonable jury could not find that Cooper’s bladder cancer was in fact the result of his use of Actos.
A 2nd trial was held in Maryland state court in September of 2013, which resulted in another failure to warn determination and a $1.77 million award for damages. However, that case also resulted in a defense verdict for Takeda after the judge applied an obscure Maryland law called “contributory negligence,” since the jury also found that the plaintiff failed to take reasonable care for his own health, which nullified Takeda’s negligence in the complaint.
Despite success at the state court level, the 1 federal trial that resulted in a $9 billion verdict may be signs of trouble for Takeda in the upcoming multidistrict litigation, as Judge Doherty has determined that juries in the federal cases will all be told of how the company either neglected to save important information or knowingly destroyed it. These “spoliation instructions” have not been given to juries at the state level.