First Actos Bladder Cancer Suit In W.Va. Goes To Trial

Daniels Tredennick Pharmaceutical and Mass Torts 0 Comments

Michael J. Miller, who represents plaintiffs Richard and Cynthia Myers, said that evidence regarding Takeda’s alleged destruction of documents proving the company was aware of the drug’s risks will be “squarely before the jury” in the West Virginia case.

Michael J. Miller, who represents plaintiffs Richard and Cynthia Myers, said that evidence regarding Takeda’s alleged destruction of documents proving the company was aware of the drug’s risks will be “squarely before the jury” in the West Virginia case.

The first trial in West Virginia state court over allegations that Takeda Pharmaceutical Co. Ltd.’s widely prescribed diabetes drug Actos causes bladder cancer begins today, featuring the same plaintiffs firm that has taken Actos cases to trial in four other states and secured three pro-plaintiff verdicts.

The West Virginia trial comes shortly after the Miller Firm LLC secured a $2 million verdict in Philadelphia on Oct. 3 over the blockbuster drug. It will be only the eighth case to go to trial out of thousands filed throughout the country in state and federal court. Four of those trials have resulted in plaintiff’s verdicts, including a ground-shaking $9 billion verdict returned after the first federal trial in April.

Michael J. Miller, who represents plaintiffs Richard and Cynthia Myers, said that evidence regarding Takeda’s alleged destruction of documents proving the company was aware of the drug’s risks will be “squarely before the jury” in the West Virginia case. Allegations of document destruction played a key role in the recent $9 billion federal trial and drew sharp criticism from the presiding judge.

Miller also said the West Virginia trial will be unique, because jurors will hear simultaneous arguments on compensatory and punitive damages in a single combined trial, and because West Virginia law doesn’t allow for a learned intermediary defense, though plaintiffs can claim they used a doctor’s advice in deciding whether to take a drug.

Actos was launched jointly by Takeda and Eli Lilly & Co. in 1999. However, the complaint filed by the Myers claims that the company was aware, through preclinical studies prior to the medication’s approval by the U.S. Food & Drug Administration, that incidences of tumors had been reported in male rats who took the drug. Richard Myers was diagnosed with bladder cancer after taking the drug for less than two years.

The U.S. Food and Drug Administration alerted the public in June 2011 that use of the drug for longer than a year could cause bladder cancer and discouraged doctors from prescribing it to patients with active bladder cancer, according to the Myers’ suit. That year, Actos generated $16 billion and represented more than a quarter of Takeda’s total sales, according to court records.

A Takeda spokesman said that the company feels it acted responsibly with regard to Actos and plans to “vigorously defend” these cases.

To date, Miller’s firm has taken Actos cases to trial in California, Nevada, Maryland and Pennsylvania state courts, using a litigation strategy that Miller characterized as “the wheels of justice.” He said his firm looks to take any case it can to trial in any jurisdiction whenever possible, instead of coordinating with other plaintiffs in consolidated multidistrict litigation.

“With sophisticated computer document searching such as we have with Crivella West, we do not need to wait for a cumbersome group of attorneys collected together in an MDL in order to move forward successfully,” said Miller. “Because of the ravages of bladder cancer and its cruel return, we feel it is important to get these cases to trial quickly in any jurisdiction we can get a jury.”

While Miller said it appears Takeda spends between $2 million and $3 million on each Actos trial, he noted his firm can try an Actos case for less than $100,000.

The results to date would indicate the strategy is working with jurors, though not all of their verdicts have remained undisturbed. A California jury returned a $6.5 million verdict in the first Actos case to go to trial in 2013, though it was later overturned by the trial judge, a decision that Miller said is currently being appealed. A Maryland state court judge also overturned a $1.75 million verdict. Two trials in Nevada have resulted in defense verdicts, though Miller’s firm was only involved in one of them.

An Illinois state court jury returned a verdict in favor of Takeda after an Actos trial in April. The plaintiff in that case was represented by The Maher Law Firm PA and Napoli Bern Ripka Shkolnik LLP.

Heading into the latest trial in West Virginia on Monday, Miller expressed confidence in his firm’s “go it alone” strategy.

“We win a lot more than we lose and hopefully this message is being understood by the rest of the Actos plaintiffs bar,” Miller said.

The plaintiffs are represented by Michael Miller and Jeffrey Travers of the Miller Firm LLC, and by Timothy Manchin and Taylor B. Downs of Manchin Injury Law Group.

Takeda is represented by Sherry A. Knutson of Sidley Austin LLP, Jonathan B. Skidmore of Fulbright & Jaworski LLP and by Neva G. Lusk of Spilman Thomas & Battle PLLC.

The case is Richard and Cynthia Myers v. Takeda Pharmaceuticals America Inc., et al., case number 13-C-315, in the Circuit Court of Berkeley County, West Virginia.

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