Litigation

California Appeals Court Reinstates $6.5 Million Actos Verdict; Expert Back In

LOS ANGELES — (Mealey’s)  A California appeals court panel on July 16 reinstated a $6.5 million Actos bladder cancer verdict, finding that the trial court erred in excluding the plaintiffs’ causation expert in a post-verdict ruling (Nancy Cooper, et al. v. Takeda Pharmaceuticals America, Inc., et al., No. B250163, Calif. App., 2nd Dist., Div. 3; 2015 Cal. App. Unpub. LEXIS 4965). 

(Opinion available.  Document #28-150723-004Z.

Jack Cooper was a type 2 diabetic who was prescribed Actos brand pioglitazone to help lower his blood glucose and took the drug from 2006 until 2011, when he was diagnosed with bladder cancer.  Cooper and his wife, Nancy, sued manufacturer Takeda Pharmaceuticals America Inc. in the Los Angeles County Superior Court, alleging that Actos caused the bladder cancer. 

The case was one of the first in the country to go to trial, and in 2013, the jury found Takeda liable for strict liability failure to warn, negligent failure to warn and loss of consortium.  It found that Takeda failed to adequately warn Jack Cooper’s treating physician about the risk of bladder cancer and that failure was a substantial factor in causing injury. 

The jury found for Takeda on the claims of negligent misrepresentation, intentional concealment and punitive damages. 

Repeated Expert Challenges

The jury awarded Jack Cooper $5 million and Nancy Cooper $1.5 million for loss of consortium. 

Before, during and after the trial, Takeda challenged the admissibility of general and specific causation testimony by plaintiff expert Dr. Norm Smith, a urologic oncologist.  Smith performed a differential diagnosis and opined that Actos was a substantial contributing factor in causing Jack Cooper’s cancer. 

Smith is co-director of the urologic oncology section at the University of Chicago. 

Deferred Expert Ruling

After the trial, Judge Kenneth R. Freeman issued a deferred ruling and struck Smith’s testimony, ruling that the testimony was speculative and lacking foundation.  The judge granted Takeda’s motion for judgment notwithstanding verdict (JNOV). 

Judge Freeman also granted Takeda’s motion for a new trial on the ground that without an expert, there was insufficient evidence to support the verdict and that the court should not have instructed the jury regarding concurrent causation. 

The plaintiffs appealed to the Second District Court of Appeal.  Jack Cooper died in July 2014 while the appeal was pending, and Nancy Cooper was substituted as successor-in-interest.

‘Rule Out’ Requirement Wrong

A Second District panel ruled that the trial court erred in striking Smith’s testimony.  “By requiring that the expert rule out all other possible causes for Jack Cooper’s bladder cancer, even where there was no substantial evidence that other such causes might be relevant, the court exceeded the proper boundaries of its gatekeeping function in determining the admissibility of the complex scientific testimony,” the panel wrote.

 

“We also conclude that the evidence supported giving a jury instruction on multiple causation,” the panel continued.  

The panel reversed the JNOV, new trial order and judgment in favor of Takeda and remanded with directions to enter a new judgment based on the jury’s verdict. 

Substantial Factor Test Misapplied

The panel said Judge Freeman misapplied the substantial factor test and improperly substituted his opinion of epidemiological studies for that of Smith and the authors of the studies.  The panel also said the judge erred in ruling that Smith could not rely on the so-called Mamtani study or the deposition testimony of Jack Cooper. 

“The evidence was clearly sufficient to support the jury’s finding that Actos was a substantial factor in causing Cooper’s bladder cancer,” the panel said in reversing the new trial order. 

The panel said Smith did not rule out smoking as a potential cause of Cooper’s bladder cancer.  In addition, it said Jack Cooper did not argue that he developed bladder cancer only because of exposure to Actos, but instead allowed for the possibility that smoking played a role in his cancer. 

Settlement Won’t Preempt Verdict

In May, Takeda said it will pay up to $2.4 billion to settle the “vast majority” of Actos bladder cancer lawsuits in the United States. 

Plaintiff attorney Michael J. Miller of the Miller Firm in Orange, Va., told Mealey Publications July 17 that Nancy Cooper’s case is not included in the global settlement and that she “will receive her verdict plus interest and cost.” 

Justice Richard D. Aldrich wrote the opinion.  The other panel members were Presiding Justice Lee Smalley Edmon and Patti S. Kitching. 

Counsel

Cooper is represented by Stuart B. Esner of Esner, Chang & Boyer in Pasadena, Calif., and Miller and Jeffrey A. Travers of the Miller Firm in Orange, Va. 

Catherine Valerio Barrad of Sidley Austin in Los Angeles represents Takeda.

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