Jury Gives Big Award in 2nd Actos Case; Judge Throws It Out

Judge M. Brooke Murdock, Circuit Court for Baltimore

Judge M. Brooke Murdock, Circuit Court for Baltimore

A Baltimore jury yesterday awarded $1.7 million to the family of a man who used the prescription drug Actos and subsequently died of bladder cancer. However, the judge in the case immediately threw the award out.

Judge Brooke Murdock said she blocked the award because the jurors also found that the deceased’s smoking contributed to his cancer.

The family of Diep An, who died in 2012, brought the lawsuit against Takeda  Pharmaceutical, Japan, which manufactures Actos, a prescription medication used to treat type 2 diabetes. Mr. An began using Actos in 2007, was diagnosed with bladder cancer in 2011 and died in 2012.

However, Takeda argued in the trial that An smoked 10 cigarettes a day for 30 years before giving up smoking in 1996, fifteen years before being diagnosed with cancer. The defendants contended that smoking may have contributed to his bladder cancer.

Despite Takeda’s smoking defense, the jurors were moved by the plaintiffs’ contention that not only did Actos contribute to Mr. An’s bladder cancer, but that Takeda Pharmaceutical knew about the increased risk of cancer associated with Actos use. The plaintiffs’ argued that Takeda failed to inform the medical community or the public about the risk, but rather concealed the information.

“Failure to warn is what we are here about,” plaintiffs’ attorney Michael Miller told the jury in closing arguments.

Plaintiffs claimed that Takeda knew about Actos and bladder cancer in 2005. The drug’s association with bladder cancer did not become public knowledge until the FDA issued a warning in 2011. Many Actos plaintiffs across the country allege that Takeda knew that Actos caused an increased risk of cancer as far back as the late 1990s, before the FDA ever even approved Actos sales in the U.S.

More than 3,000 lawsuits have been filed against Takeda alleging bladder cancer and other adverse effects. The Baltimore case is the second to go to trial. The first, Cooper v. Takeda, played out in California Superior Court in April and had a remarkably similar outcome. The plaintiff, Jack Cooper, took Actos for five years and subsequently developed bladder cancer which has since spread throughout his body. A jury ordered Takeda to pay Cooper $6.5 million, but the judge in the case overturned the award.

Judge Kenneth Freeman ruled that Cooper’s case depended on an urologist whose expert testimony was “based upon speculation, conjecture and leaps of logic” and was “inherently unreliable.”

Mr. Cooper, who, like An in Baltimore, is represented by attorney Michael Miller, is appealing the judge’s ruling.

In closing arguments in the Baltimore case, a lawyer for Takeda told the jury that the link between Actos and bladder cancer has not been proven and that such claims are based on what he called “tenuous science.” However, in 2011, after reviewing data from several years of an ongoing Actos study, the FDA issued a warning that “the use of pioglitazone [Actos] for more than one year may be associated with an increased risk of bladder cancer.”

Most of the thousands of Actos lawsuits are pending in various state courts. In addition, more than 2,500 federal cases have been consolidated into a multidistrict litigation before U.S. District Judge Rebecca F. Doherty in the Western District of Louisiana. That case is set for trial in January.

Actos is still available on the U.S. market, and a generic version of the drug came out this year. Sales of the drug were banned in France in 2011, and in Germany the drug has been removed from the reimbursed medicines list.

To learn more about Actos and to learn more about your legal rights, if you or a loved one have used Actos and have been diagnosed with bladder cancer, see our page on Actos Linked to Bladder Cancer.