A judge in Illinois has rejected a plaintiff’s request for sanctions against Takeda Pharmaceuticals America Inc. and its affiliates for the destruction of evidence related to its diabetes drug Actos and the allegations that it increases the risk of bladder cancer.
Cook County Circuit Court Judge Deborah Mary Dooling said it was not appropriate to sanction Takeda for pre-suit destruction of evidence. “In the absence of any showing that the lost documents contained evidence either beneficial to plaintiff or detrimental to Takeda, this court cannot find that plaintiff has suffered prejudice,” Dooling said. “Under these circumstances, imposing sanctions here would only serve to punish Takeda.” Read the judge’s order here.
In contrast, U.S. District Judge Rebecca Doherty, citing “grave concerns” about the drug manufacturer’s conduct, sanctioned Takeda and its affiliates by ordering a jury in the first federal Actos bellwether trial be informed that 46 files were missing. The jury in the case awarded more than $9 billion, most of that punitive damages against Takeda and Eli and Company, which had an agreement to co-promote Actos for a period of time. Dooling said the Louisiana federal court’s ruling is not binding on her.
The court, applying a six-factor test from the Illinois Supreme Court’s 1998 decision in Shimanovsky v. GMC, said the plaintiff failed to show prejudice from the destruction of the evidence and the plaintiff waited to file her motion for sanctions until two weeks before the case was set for trial. But the court found that Takeda acted in bad faith by destroying documents prior to the filing of the first Actos bladder cancer lawsuit “in clear contravention of a products liability litigation hold pertaining to Actos that has been in place since July 19, 2002.”
Takeda destroyed files for 19 current or former employees between 2008 and 2012, including for its chief executive officer, research and development managers and sales people.
The plaintiff alleged the duty to preserve evidence was triggered July 19, 2002, when Takeda started a litigation hold in response to a lawsuit alleging Actos caused liver failure. The court agreed Takeda voluntarily undertook a duty to preserve evidence for all Actos-related documents with its 2002 litigation hold.
The plaintiff did not bring a claim for spoliation of evidence.
Amaris Elliott-Engel contributes to law.com.