Law360, New York (October 17, 2014, 6:13 PM ET) -- The first trial in West Virginia state court over allegations that Takeda Pharmaceutical Co. Ltd.'s widely prescribed diabetes drug Actos causes bladder cancer begins Monday, featuring the same plaintiffs firm that has taken Actos cases to trial in four other states and secured three pro-plaintiff verdicts.
The West Virginia trial comes shortly after the Miller Firm LLC secured a $2 million verdict in Philadelphia on Oct. 3 over the blockbuster drug. It will be only the eighth case to go to trial out of thousands filed throughout the country in state and federal court. Four of those trials have resulted in plaintiff’s verdicts, including a ground-shaking $9 billion verdict returned after the first federal trial in April.
Michael J. Miller, who represents plaintiffs Richard and Cynthia Myers, told Law360 that evidence regarding Takeda’s alleged destruction of documents proving the company was aware of the drug’s risks will be “squarely before the jury” in the West Virginia case. Allegations of document destruction played a key role in the recent $9 billion federal trial and drew sharp criticism from the presiding judge.
Miller also said the West Virginia trial will be unique, because jurors will hear simultaneous arguments on compensatory and punitive damages in a single combined trial, and because West Virginia law doesn’t allow for a learned intermediary defense, though plaintiffs can claim they used a doctor’s advice in deciding whether to take a drug.
Actos was launched jointly by Takeda and Eli Lilly & Co. in 1999. However, the complaint filed by the Myers claims that the company was aware, through preclinical studies prior to the medication’s approval by the U.S. Food & Drug Administration, that incidences of tumors had been reported in male rats who took the drug. Richard Myers was diagnosed with bladder cancer after taking the drug for less than two years.
The U.S. Food and Drug Administration alerted the public in June 2011 that use of the drug for longer than a year could cause bladder cancer and discouraged doctors from prescribing it to patients with active bladder cancer, according to the Myers’ suit. That year, Actos generated $16 billion and represented more than a quarter of Takeda’s total sales, according to court records.
A Takeda spokesman told Law360 that the company feels it acted responsibly with regard to Actos and plans to “vigorously defend” these cases.
To date, Miller’s firm has taken Actos cases to trial in California, Nevada, Maryland and Pennsylvania state courts, using a litigation strategy that Miller characterized as “the wheels of justice.” He said his firm looks to take any case it can to trial in any jurisdiction whenever possible, instead of coordinating with other plaintiffs in consolidated multidistrict litigation.
“With sophisticated computer document searching such as we have with Crivella West, we do not need to wait for a cumbersome group of attorneys collected together in an MDL in order to move forward successfully,” Miller told Law360. “Because of the ravages of bladder cancer and its cruel return, we feel it is important to get these cases to trial quickly in any jurisdiction we can get a jury.”
While Miller said it appears Takeda spends between $2 million and $3 million on each Actos trial, he noted his firm can try an Actos case for less than $100,000.
The results to date would indicate the strategy is working with jurors, though not all of their verdicts have remained undisturbed. A California jury returned a $6.5 million verdict in the first Actos case to go to trial in 2013, though it was later overturned by the trial judge, a decision that Miller said is currently being appealed. A Maryland state court judge also overturned a $1.75 million verdict. Two trials in Nevada have resulted in defense verdicts, though Miller’s firm was only involved in one of them.
--Additional reporting by Kat Greene, Juan Carlos Rodriguez and Matt Fair. Editing by Patricia K. Cole.