LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
LAS VEGAS — (Mealey's) A Nevada state court jury on May 22 returned a unanimous defense verdict in a 32-day, two-plaintiff Actos bladder cancer trial, but two plaintiff attorneys say they will seek a new trial because they believe their objections to what the judge labeled “misconduct” by defense counsel influenced the jury against the plaintiffs (Bertha Triana v. Takeda Pharmaceuticals America Inc., No. A-13-680556-C, Delores Cipriano v. Takeda Pharmaceuticals America Inc., No. A-13-680922, Nev. Cir., Clark Co.).
The eight-member jury in the Clark County Circuit Court found that plaintiffs Bertha Triana and Delores Ciprano did not meet their burdens to establish that Takeda Pharmaceuticals America Inc. was strictly liable for failure to warn, for breach of implied warranty for a particular purpose, for defective design and for fraudulent concealment.
The jury, consisting of six women, found that the plaintiffs were due $0 in damages.
Takeda Pleased, Has Empathy
In a press release, Kenneth D. Greisman, Takeda senior vice president and general counsel, said the company agrees with the verdict. “Takeda is confident in the therapeutic benefits of Actos and its importance as a treatment for type 2 diabetes and we will continue to defend the company vigorously in these cases.”
“We have empathy for Ms. Triana and Ms. Cipriano, but we believe we have acted responsibly with regard to Actos,” Greisman said.
Paul Pennock of Weitz & Luxenberg in New York and Will Kemp of Kemp, Jones & Couthard in Las Vegas, who both represent Triana, told Mealey Publications that they will move for a new trial because they believe the jury was prejudiced against the plaintiffs because plaintiff attorneys made repeated objections about defense counsel objections during the plaintiffs’ case.
In Limine Orders Violated?
Pennock said that on the two occasions during that trial in which he spent more than a week presenting testimony by a plaintiffs’ pharmacovigilance expert, “what I observed from the defense lawyers in terms of violations of very obvious and clear motions in limine was abuse. I think this verdict will be overturned by the trial judge and that a new trial will be ordered on that basis.”
Kemp said that he, too, felt that the jury had been influenced by the defense conduct.
During her May 19 instructions, Judge Kerry Earley told the jury that Takeda’s trial counsel “repeatedly and persistently” violated court orders concerning certain testimony and said the jury should not be prejudiced against the plaintiffs and their counsel for objecting to the defendant’s “pattern of misconduct.” The judge had indicated in late April that she would issue the curative instruction to the jury to avoid prejudice against the plaintiff attorneys.
The defense verdict is the second in a row for Takeda, which won an Actos bladder case May 15 in the Cook County Circuit Court in Illinois. In April, however, a jury in the first federal multidistrict litigation Actos trial awarded a plaintiff $9 billion, the bulk of it in punitive damages.
Takeda said May 22 that it is challenging the $9 billion verdict.
Juries in two other state court trials found in favor of plaintiffs, but the verdicts were vacated on post-trial motions, one because of contributory negligence by the plaintiff and the other after a plaintiff expert was disqualified. The fifth verdict was for the defense.
Deliberations For 1-1/2 Days
Deliberations in the Triana and Cipriano cases began late May 20. The jury returned its verdict just after noon May 22.
Triana, 80, and Cipriano, 81, are diabetics who were both prescribed Actos-brand pioglitazone to help lower their blood glucose. Each developed bladder cancer, and each sued Actos manufacturer Takeda in the Circuit Court, alleging that the drug caused their cancer and that Takeda failed to warn them or their doctors of the risk.
Takeda argued that Triana’s and Ciprano’s prescribing physicians continued to prescribe Actos to other patients even after the plaintiffs developed bladder cancer. It also said a “gold standard” epidemiological study concluded that Actos does not cause bladder cancer.
Takeda also argued that the Actos warning label was and is adequate and said a different warning would not have changed the doctors’ decision to prescribe it to the plaintiffs.
Takeda said the former Upjohn Co. did not back away from co-promoting Actos for safety reasons as plaintiffs alleged but instead decided it did not want to commit the money it would take to further develop the drug. Eli Lilly and Co. later co-promoted Actos with Takeda.
Document Destruction Inference
In her instructions, Judge Earley told the jury that in addition to answering the jury questions about liability and damages, it could make an adverse inference about documents that Takeda failed to preserve or destroyed. Judge Earley said Takeda destroyed documents related to Actos and bladder cancer and documents related to why Upjohn withdrew from discussions about co-promoting Actos with Takeda.
Judge Earley instructed the jury that Takeda was legally obligated as of July 2002 to preserve relevant information about Actos due to litigation pending at that time. She said the jury may draw an inference that the destroyed evidence would have been unfavorable to Takeda.
In addition to past, present and future compensatory damages, the jury could consider if it should impose punitive damages to punish Takeda for any wrongful conduct. The judge said that to do so, the jury had to find that Takeda acted with fraud, oppression or malice.
The trial began March 10 but did not take place continually.
Another Clark County Actos bladder cancer trial is set for Oct. 27.
Cipriano is represented by Robert Eglet of Eglet Wall Christiansan in Las Vegas. Triana is represented by Kemp and Pennock.
Takeda is represented by D’Lesli Davis of Fulbright & Jaworski in Dallas, Kelly Evans of Snell & Wilmer in Las Vegas and Craig Thompson of Venable in Baltimore.
For all of your legal news needs, please visit www.lexisnexis.com/mealeys.
Lexis.com subscribers may search all Mealey Publications.
Non-subscribers may search for Mealey Publications stories and documents at www.mealeysonline.com or visit www.Mealeys.com.
Mealey's is now available in eBook format
For more information about LexisNexis products and solutions, connect with us through our corporate site.