W.Va. Jury Finds Spoliation Of Evidence, Awards $155,000 Against Actos Manufacturer Takeda

MARTINSBURG, W.Va. — (Mealey’s) A West Virginia state court jury on Nov. 17 found that Actos is not unsafe and that manufacturer Takeda Pharmaceutical Co. Ltd. was not negligent in the case of a man who developed bladder cancer while taking the diabetes drug, but the panel did find spoliation of evidence on the defendant’s part and awarded the plaintiffs $155,000 in compensatory damages, according to a Takeda press release (Richard F. Myers, et al. v. Takeda Pharmaceuticals America Inc., et al., No. 13-C-315, W.Va. Cir., Berkeley Co.). 

According to Takeda, the jury in the Berkley County Circuit Court denied punitive damages on the spoliation claim of plaintiff Richard F. Myers and his wife, Cynthia. 

Takeda said it is considering its options, including post-trial motions and an appeal of the spoliation award. 

Counsel for the Myerses were not available for comment. 

Circuitous Route To State Court

Richard Myers, now 71, says he was prescribed Actos to treat his type-2 diabetes and developed bladder cancer as a result of the drug.  He and his wife sued Takeda and related entities in the Harrison County Circuit Court. 

The case was removed to the U.S. District Court for the Northern District of West Virginia but was remanded because of a nondiverse co-defendant, Patterson’s Drug Store in Martinsburg, where the Actos was dispensed.  Patterson’s was dismissed in 2013, leaving Takeda as the sole defendant. 

On remand, the case was transferred to the Berkeley County Circuit Court, where trial began Oct. 20. 

Judge Christopher Wilkes presided. 

Spoliation Persistent Issue

Spoliation of evidence has played a large part in Actos bladder cancer litigation, which includes a federal multidistrict litigation in the U.S. District Court for the Western District of Louisiana and litigation in various state courts.  The MDL court has found that Takeda acted in bad faith in destroying or failing to preserve company data related to Actos.  

The federal court findings have played a role in several Actos trials to date. 

The MDL court sanctioned Takeda by ordering it to restore erased electronic data.  Takeda has indicated that it intends to appeal the spoliation issue. 

Counsel

The Myerses are represented by Michael J. Miller and Jeffrey Travers of The Miller Firm in Orange, Va., and Timothy Manchin and Taylor B. Downs of the Manchin Injury Law Group in Fairmont, W.Va. 

Takeda is represented by Sherry A. Knutson of Sidley Austin in Chicago, Jonathan B. Skidmore of Fulbright & Jaworski in Dallas and Neva G. Lusk of Spilman, Thomas & Battle in Charleston, W.Va.

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