Henderson resident Delores Cipriano, right, is consoled by attorney Robert Eglet after she lost her civil suit against against Japanese drug maker Takeda Pharmaceuticals at the Regional Justice Center on Thursday, May 22, 2014. Cipriano and Las Vegas resident Bertha Triana were diagnosed with bladder cancer after taking the prescription drug pioglitazone. Takeda makes the medication under the trade name Actos.
A Nevada state jury found for Takeda Pharmaceutical Co. Ltd. on Thursday after a months-long trial in which two elderly women claimed the company’s diabetes drug Actos causes bladder cancer, a victory that follows Takeda’s astounding $6 billion loss earlier this year in a federal suit over the same drug.
The jury delivered its verdict after roughly two days of deliberations, handing a win to Takeda, which went through a tumultuous trial. It first failed to get Judge Kerry Earley to recuse herself from presiding over the case, and later found its attorneys slapped with sanctions for misconduct.
The suit, brought by Bertha Triana and Delores Cipriano, both in their early 80s, claimed that Takeda failed to warn patients and doctors of the bladder cancer risks of Actos despite knowing about them. The plaintiffs had sought a total of up to $65.3 million in actual damages and billions in punitive damages, Charlotte Evans, a spokeswoman for the plaintiffs’ attorneys, told Law360 Wednesday.
Triana sought $35 million in actual damages, and between 10 to 15 percent of that amount for her husband for loss of consortium, while Cipriano sought $25 million in actual damages for Takeda’s conduct, Evans said.
“Takeda is confident in the therapeutic benefits of Actos and its importance as a treatment for type 2 diabetes and we will continue to defend the company vigorously in these cases,” Takeda general counsel Kenneth Greisman said in a statement Thursday. “We have empathy for Ms. Triana and Ms. Cipriano, but we believe we have acted responsibly with regard to Actos.”
The Japanese drugmaker’s alleged evidence spoliation, an issue that has surfaced in other Actos cases, also threatened to haunt it in the Nevada case. Judge Earley issued an adverse instruction before closing arguments Monday, telling the jury that the defense destroyed evidence after there was a legal hold placed, and that the jury could assume that the evidence would have been unfavorable to the defense if it had been preserved.
Judge Earley had issued sanctions last month against Takeda attorneys including Norton Rose Fulbright partner D’Lesli M. Davis and Snell & Wilmer LLP partner Kelly Evans, saying they engaged in misconduct by repeatedly violating the court’s pretrial orders, according to Charlotte Evans.
Takeda’s defense counsel repeatedly attempted to broach topics that Judge Earley had set off limits before the trial, Charlotte Evans said, claiming that the plaintiffs had to repeatedly raise objections during the trial, which has been ongoing since March.
Judge Earley’s adverse instructions to the jury Monday also addressed this, she said. The judge told the jury that the defense attorneys’ misconduct put plaintiffs in the position of having to object repeatedly, and that the jury should not hold it against the plaintiffs for doing so, Charlotte Evans said.
“I’m disappointed for my client,” Robert Eglet of Eglet Wall Christiansen, who represents the plaintiffs, said Thursday. “We haven’t had a chance to talk with the jury yet to find out what they based their decision on. We feel we had a very strong case.”
Takeda’s win Thursday followed another recent victory, in which an Illinois state jury earlier this month cleared it of liability in the first trial among thousands of Illinois lawsuits blaming the diabetes drug Actos for causing bladder cancer.
The 12-member jury — seven men and five women — returned a unanimous verdict in favor of the Japanese drug maker after less than two hours of deliberations in Chicago, ending plaintiff Diane Whitlatch’s suit alleging Actos was behind the bladder cancer that killed her husband and that Takeda failed to provide ample warning of the drug’s risks.
The drugmaker has so far won five out of the six Actos trials, and that it is challenging the ruling in the case it lost.
Takeda’s major Actos defeat came in a federal bellwether trial earlier this year, when a Louisiana federal jury in April ordered it to pay $6 billion in punitive damages to couple Terrence and Susan Allen. In that case, U.S. District Judge Rebecca F. Doherty had issued a scathing opinion in January, saying that Takeda breached a duty to preserve evidence in the Actos multidistrict litigation.
She had held off on issuing sanctions right then however, saying she would determine what adverse instruction she would give the jury after hearing all of the evidence at trial in that case. Attorneys predicted at the time that this would be costly to Takeda, to allow a jury to hear details of its alleged evidence spoliation.
The Allens had accused Takeda of hiding results of clinical studies it has known about since before the drug was approved by the U.S. Food and Drug Administration. Those studies show that using the drug causes bladder cancer, according to their suit.