Actos attorneys at Pintas & Mullins recently reported that the jury in the first bellwether lawsuit decided to award plaintiffs injured by the diabetes drug Actos $9 billion. In addition to this immense award, the judge in the case also found that Takeda Pharmaceuticals (which marketed Actos along with Eli Lilly) was guilty of intentionally destroying evidence.
Throughout the trial, which was filed by a man named Terrence Allen who developed bladder cancer from taking Actos, it became clear that Takeda had knowingly destroyed millions of documents relating to the drug. This, despite being under court orders to preserve such documents since 2002.
The Louisiana federal judge presiding over this case, Judge Doherty, informed the jury that Takeda destroyed much of its internal communications regarding the drug, including emails from more than 45 current and former employees. The judge then allowed the jury to infer, if it wanted to, that the missing documents could have proved that Takeda executives knew about the causal link between Actos and bladder cancer.
Surprisingly, Actos is still legally prescribed and sold in the United States and has not been recalled by the FDA. The agency did, however, issue a Safety Announcement regarding Actos in September 2010, in which it stated that it was reviewing data from a decade-long study to determine whether there was a strong link between bladder cancer and Actos use.
The reason this document destruction is such a big deal is because it could, if more information were available, prove liability. Pharmaceutical companies are typically not held legally responsible for significant side effects of their prescription drugs unless they were aware of these effects and failed to warn doctors about them. If it becomes clear the company willingly chose to fail to warn patients and physicians of the dangers, lawsuits may be filed.
In this Louisiana case, the judge stated that the destroyed documents were in fact relevant to the case, intentionally erased, and that their erasure negatively affected the plaintiff's case. The plaintiffs, Terrence Allen and his wife Susan, alleged that Takeda knew of the bladder cancer risk even before it applied for Actos approval in 1999.
Thousands of lawsuits have been filed on behalf of those diagnosed with cancer after taking Actos, with more than 6,000 currently pending in the Louisiana MDL. As stated, this $9 billion jury award was the first bellwhether case in this MDL. Bellwether trials are used as tools to help resolve mass tort.
To back up a little, mass tort litigation involves many lawsuits filed by plaintiffs who suffered similar injuries from the same drug, product or device. The Actos lawsuits are considered a mass tort because most plaintiffs are all suing the drug manufacturer for causing a similar injury - bladder cancer, and withholding the information it had about this injury.
So, one of the tools federal courts have in mass torts is known as a bellwether trial, which judges decide to use. During bellwether trials, the plaintiffs, defendants and judge all decide on 5-10 specific cases that will represent the larger class as samples. These cases are then prepared and tried to a jury, to give all interested parties a good idea of what will likely occur in the future trials. For example, if more Actos plaintiffs win their bellwether trials, Takeda will become more and more willing to settle for a large amount.