ACTOS UPDATE: Takeda Destroyed Evidence In Cancer Suit, Judge Says

In April 2014, the U.S District Court in western Louisiana ordered a $6 billion penalty for Takeda's Actos and $3 billion for its business partner and co-defendant Eli Lilly and Company.

In April 2014, the U.S District Court in western Louisiana ordered a $6 billion penalty for Takeda’s Actos and $3 billion for its business partner and co-defendant Eli Lilly and Company.

A Louisiana federal judge said on Friday, June 20th, that Takeda Pharmaceuticals Co. Ltd. intentionally destroyed evidence that would have helped the plaintiffs in a $9 billion bellwether lawsuit over claims the company hid the cancer risks of diabetes drug Actos to keep sales high.

The ruling from U.S. District Judge Rebecca Doherty follows plaintiffs Terrence and Susan Allen’s April victory in the first federal jury decision in multidistrict litigation against Asia’s largest drug company and its American partner, Eli Lilly & Co. The jury hit Takeda with $6 billion in punitive damages and Eli Lilly with $3 billion. The companies, which jointly marketed the drug, also will split payment of $1.5 million in actual damages to the Allens.

Judge Doherty, who had previously addressed Takeda’s conduct, said Takeda breached its obligation to preserve certain information related to the Allens’ suit. The intentionally destroyed documents were both relevant to the case, and their absence was prejudicial to the plaintiffs, the judge said.

“There is no dispute in this case as to the intentional nature of the defendants’ document destruction,” the judge said. “The absence of those files can be reasonably assumed to have prejudiced Mr. and Mrs. Allen from presenting a full and complete picture of Takeda’s actions and will prejudice the [plaintiffs steering committee] within this MDL, as those documents are forever lost and the electronically generated or stored information was deleted and cannot be fully reconstituted.”

Judge Doherty’s Friday decision only impacts Takeda, and she deferred making any findings about attorney misconduct until a later date. She also declined to make a default judgment against the company, as the plaintiffs steering committee had requested.

Instead, she ordered Takeda to continue to reconstruct all the deleted files. A timeline will be established with the input of the plaintiffs steering committee and the court. Until that process is done, the judge said she will defer making a determination of attorneys’ fees.

But she said the plaintiffs’ steering committee may file a request to shift to Takeda all costs, including attorneys’ fees, related to third-party discovery that would not have been conducted except for Takeda’s bad-faith conduct.

The Allens alleged that even before Takeda applied for approval from the U.S. Food and Drug Administration, it knew from the results of animal testing that Actos could cause bladder cancer, according to the original complaint. Later, in the early 2000s, clinical trials in humans had shown it would induce the cancer, the suit said.

Allen’s bladder cancer ruined his life, he said in his suit, causing him pain, mental anguish, the risk of future cancer, and the need for lifelong medical treatment.

Thousands of lawsuits were filed over the drug’s allegedly carcinogenic side effects, prompting more than 6,000 of them to be clustered into a multidistrict litigation in Louisiana.

“Takeda denies that any documents were destroyed with the intent of prohibiting their use in litigation. We also respectfully disagree with the jury instruction given during the Allen trial that Takeda had a duty to preserve Actos documents for use in bladder cancer cases beginning nine years before the first bladder cancer lawsuit was filed,” the company said in a statement issued Friday.

Counsel for the Allens did not immediately respond to requests for comment Friday.

The plaintiffs are represented by W. Mark Lanier of The Lanier Law Firm, by Paul J. Pennock of Weitz & Luxenberg PC and by Richard J. Arsenault of Neblett Beard & Arsenault.

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