Huge Punitive Damages Award in Actos Bellwether Trial

Huge Punitive Damages Award in Actos Bellwether Trial W. Mark Lanier

A jury in Louisiana has awarded more than $9 billion in the first federal bellwether trial over claims that taking Actos increases the risk of getting bladder cancer.

The jury’s verdict, the first of nearly 3,000 lawsuits coordinated for pretrial purposes before U.S. District Judge Rebecca Doherty in Lafayette, La., emerged late Monday after nearly two months of trial.

“You don’t get something like this because the jury is upset about a mistake here or there,” said W. Mark Lanier, founder of The Lanier Law Firm in Houston, lead trial counsel for plaintiffs Terrence and Susan Allen. “It was a cesspool of rotten behavior in my opinion, and the jury just got fed up with it.”

In statements released on Tuesday, both defendants—Takeda Pharmaceuticals USA Inc. and Eli Lilly & Co.—insisted that the evidence did not support the claims in the case. They have vowed to appeal the verdict.

“Takeda respectfully disagrees with the verdict and we intend to vigorously challenge this outcome through all available legal means, including possible post-trial motions and an appeal,” Kenneth Greisman, senior vice president and general counsel of Takeda Pharmaceuticals USA, said in a prepared statement.

The verdict was the first to involve Indianapolis-based Lilly, which jointly promoted Actos from 1999 to 2006.

“Lilly disagrees with the verdict and we intend to vigorously challenge this outcome through all available legal means,” said Mike Harrington, senior vice president and general counsel of Eli Lilly, in a prepared statement. The company added that Takeda has agreed to indemnify it for losses and expenses related to the Actos litigation.

The New York couple sued after Terrence Allen, who began taking Actos in 2006 to treat his Type 2 diabetes, was diagnosed with bladder cancer in 2011. Six months later, Takeda changed the Actos label to reflect new warnings from the U.S. Food and Drug Administration that taking the drug for more than a year might be associated with an increased risk of bladder cancer.

Lanier said the trial involved a plaintiffs team of 30 lawyers, including Richard Arsenault, a partner at Neblett, Beard & Arsenault in Alexandria, La., and Paul Pennock, head of the pharmaceutical and medical device litigation department at New York’s Weitz & Luxenberg. Both are co-lead plaintiffs counsel in the coordinated federal proceedings before Doherty. Takeda and Eli Lilly were represented by Sara Gourley, a partner at Chicago’s Sidley Austin.

The trial also featured sanctions against Takeda over deleted emails and accusations that a former Eli Lilly marketing executive lied in his testimony during trial.

The jury, which found that both companies were negligent in marketing the drug by failing to warn about its cancer risks, awarded $1.475 million in compensatory damages. Takeda was found 75 percent liable and Lilly 25 percent. Jurors found that taking Actos was a substantial factor in Allen’s cancer diagnosis and that his wife was entitled to damages for loss of consortium.

After concluding that both companies were reckless in marketing the drug, jurors awarded $9 billion in punitive damages. The jury split the award, with $6 billion against Takeda and $3 billion against Lilly.

Takeda, a subsidiary of Takeda Pharmaceutical Co. Ltd. in Japan, has so far skirted verdicts in three state court trials over Actos during the past year. In the first trial, a jury in Los Angeles rendered a $6.5 million verdict, but Takeda got the award tossed out after challenging a key plaintiffs’ expert. A jury in Baltimore issued a $1.7 million verdict, but the judge threw it out. And a jury in Las Vegas came out with a defense verdict.

A second case in Las Vegas began in February against Takeda. The second federal bellwether trial, originally scheduled for April 14, has been postponed.

Contact Amanda Bronstad at abronstad@alm.com.

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