Judge Rules that Takeda Destroyed Critical Evidence in Actos Cases

Just one week before opening statements in the bellwether trial for the federal MDL (multidistrict litigation) involving nearly 3000 Actos bladder cancer lawsuits, Takeda Pharmaceuticals suffered a blow regarding evidence discovery. On January 27, 2014, the federal MDL judge ruled that Takeda breached its duty to preserve documents related to the lawsuits, finding that the pharmaceutical company acted in “bad faith” in failing to preserve evidence after the litigation hold was in place, and during pretrial proceedings and the discovery process.

Takeda acted in bad faith, knew lawsuits were coming

Defense lawyers argued that Takeda was unaware that there was a risk of lawsuits before the summer of 2011. However, Judge Doherty agreed with plaintiffs’ attorneys who asserted that Takeda knew as early as July 2002, when the first litigation hold was issued in the United States. In fact, the evidence to support the first litigation hold were documents produced by Takeda Pharmaceuticals. Perhaps the most serious implication of the ruling is that the jury at the bellwether trial will be allowed to hear the evidence regarding the alleged “bad faith” and intentional destruction of documents that support the plaintiffs’ case.

One of the many pieces of evidence that Takeda admitted deleting, otherwise destroying, or being unable to produce were records of communications between Upjohn and Takeda. The plaintiffs’ lawyers were able to produce some of these records via third-party discovery, which indicated that Upjohn had concerns regarding the safety of the drug pioglitazone (Actos). Within these communications, the Takeda representative requested that Upjohn amend their language regarding their safety concerns to verbiage carrying less weight regarding the safety of the drug.

At this juncture, it is unclear how this new revelation regarding the Takeda Pharmaceutical company will reflect on the outcome of the MDL lawsuits.

The causes of action in the Actos lawsuits are largely centered around allegations that Takeda knew the drug was dangerous and failed to adequately warn of said dangers in their marketing and distribution of Actos. During the bellwether trial, it will become clear just how much Takeda’s handling and intentional destruction of relevant evidence will reflect on the allegations put forth by plaintiffs. In short, will this recent ruling that confirms Takeda’s mishandling of pertinent evidence bear upon the allegations that Takeda mishandled the inherent safety issues of Actos?

MDL bellwether trial

The Actos MDL, or multidistrict litigation, was created in December 2011 to help streamline pretrial processes before ultimately transferring each lawsuit back to the trial court for final determination. The bellwether trial, which is currently underway, is a gauge of how a jury will react to testimony, evidence, and other information that is likely to be repeated, if all of the over 2600 lawsuits go to trial. Such trials can give all parties insight into what kind of damages will result from the litigation and can lay the foundation for settlement negotiations.

More specifically, this bellwether trial will give lawyers on both sides of the Actos cancer lawsuits an idea of how the jury will respond to the ruling that Takeda intentionally acted in “bad faith” by destroying documents that allegedly support plaintiffs’ allegations against Takeda Pharmaceuticals.

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