BREAKING: $2 Billion Suit Over Popular Diabetes Drug’s Alleged Cancer Risks Goes To Trial

Posted by David Siegel on Aug 27, 2015 6:25:00 PM

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Plaintiffs' attorney Robert Eglet shows jurors the type of hard drives he claimed Takeda destroyed because they contained evidence that the widely-prescribed diabetes medication Actos causes bladder cancer. Click here to see video from the trial. 

Las Vegas  Japanese drug manufacturer Takeda Pharmaceuticals Co. Ltd. should pay $2 billion in damages after intentionally destroying hard drives containing evidence that their blockbuster diabetes medication Actos caused bladder cancer, according to an attorney representing two men who took the drug in a closely-watched suit that went to trial on Thursday in Nevada state court. 

Plaintiffs’ attorney Robert Eglet began his opening statement in the high-stakes case by telling jurors that Takeda destroyed incriminating evidence despite a litigation hold issued in 2002 requiring them to preserve materials related to the alleged cancer risks of Actos, which was one of the company’s top-selling drugs. He said Actos caused bladder cancer in his clients George Decou and Maurice Iorio, but told jurors that “pieces of the puzzle” necessary to prove that claim were missing because of Takeda’s cover-up.

“Takeda has prevented you from knowing the whole truth about the diabetes drug Actos that they produce, and that it can cause bladder cancer,” Eglet told jurors, according to a Courtroom View Network webcast of the proceedings. (Click here to see video from the trial.)

The trial's outcome could play a key role in determining whether or not a $2.4 billion proposed settlement between Takeda and plaintiffs in nearly 8,000 similar lawsuits survives. 95 percent of Actos plaintiffs need to accept the settlement’s terms, which offer an average payout of $250,000, before the deal would kick in. To date only 75 percent have signed on, and a large award in the current trial could persuade holdout plaintiffs to take their claims to a jury instead of settling.

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Eglet lost his bid in 2014 to hit Takeda with a multi-billion dollar verdict at a previous Actos trial in Las Vegas, but a federal jury that same year slammed the company with a staggering $9 billion verdict over the drug. U.S. District Judge Rebecca Doherty ultimately cut the award to $36 million, but also excoriated Takeda for intentionally destroying Actos-related evidence, a subject placed front and center in Eglet’s opening statement.

He repeated jury instructions from Judge Jerry Wiese, which said jurors should presume that missing Actos-related information on hard drives destroyed by Takeda contained information adverse to the company’s position.

“The Court has determined that the defendants willfully and intentionally destroyed certain documents and information, and that such destruction occurred for the purposes of prejudicing individuals who could ultimately use such documents and information against defendants for litigation purposes,” Judge Wiese's jury instructions state.

Takeda has argued that Iorio, who died in 2013 and Decou developed bladder cancer from smoking, and that their illnesses can’t be clearly linked to taking Actos.

Company spokeswoman Sandy Rodriguez told CVN that Takeda has extensive clinical data showing that there isn’t a provable link between taking Actos and developing bladder cancer, including a 10-year study performed by the University of Pennsylvania and Kaiser Permanente.

“Takeda continues to believe that the claims made in the litigation are without merit and stands firmly behind the substantial data confirming a positive benefit/risk profile for Actos,” Rodriguez said. “As a company, we believe Takeda acted responsibly with regard to Actos, and we will vigorously defend Takeda in this case.”

Takeda’s opening statements are scheduled to begin Friday morning. 

Actos generated $4.5 billion in sales in 2011 and made up 27 percent of Takeda’s revenue that year, according to Bloomberg News, and Eglet argued to jurors that Takeda withheld information about the drug’s supposed cancer risks to protect those huge profits. He said Takeda didn’t disclose Actos’ potential dangers until a few months before the company’s patent on the drug expired in 2012, despite allegedly knowing of them as far back as 1993 when Actos was still being developed and tested on rats.

“Takeda was purposely untruthful to its consumers,” Eglet told the jury, suggesting that Takeda wanted to maximize Actos sales while it enjoyed an exclusive patent on pioglitazone, the generic name for Actos.

Actos was launched in 1999 and jointly marketed with Eli Lilly & Co., and it quickly become one of Takeda’s top-selling drugs. Regulators in France and Germany yanked Actos from the market in 2011, the same year that the U.S. Food & Drug Administration issued a warning that the drug could cause an increased risk of bladder cancer while still allowing it to be sold in the United States.

Nine Actos cases have gone to trial since an initial bellwether case in California state court in 2013, including three trials recorded gavel-to-gavel by CVN. Juries ruled against Takeda in five of those cases, although two of those verdicts were later thrown out by judges. However in July a California appeals court reinstated the first $6.5 million plaintiffs verdict against Takeda after a lower court granted the company’s request for a new trial.

Eglet has a history of landing record-setting verdicts in Nevada courtrooms. A jury in 2013 returned a $524 million verdict against United Healthcare in a case tried by Eglet, after the insurer referred a patient to an endoscopy clinic where he was exposed to hepatitis. It was the largest plaintiffs verdict in Nevada history at the time, and the $2 billion Eglet seeks in the current case would far exceed that amount.

"Without substantial punitive damages there is nothing to deter a company of this size from engaging in the same unconscionable, deadly practices again," Eglet said in a statement.

The trial before Judge Wiese is being webcast live and recorded gavel-to-gavel by CVN and is available for online viewing along with past Actos cases and other high-stakes pharmaceutical product liability trials.

The plaintiffs are represented by Robert Eglet of Eglet Prince and Kemp and by Jones & Coulthard.

Takeda is represented by Snell & Wilmer.

The case is George Decou, et al. v. Takeda Pharmaceuticals America Inc., et al., case number A-13-683446-C in Nevada’s Eighth Judicial District Court in Clark County.

E-mail David Siegel at dsiegel@cvn.com

Topics: Products Liability, Pharmaceutical, Nevada

Trial Continues in Case of Worker Burned Alive in Recycing Plant Fire

Posted by Steve Silver on Aug 27, 2015 2:36:16 PM

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Atlanta—The tragic death of a 19-year-old worker in an industrial fire at an Atlanta recycling plant has become the subject of a heated trial currently underway in Fulton County State Court. Efrain Hilario et al. v. Newell Recycling of Atlanta, Inc. (12EV015400).

Newell Recycling is one of the southeast’s leading scrap metal processors. Among the operations at its headquarters facility in East Point, GA, the company uses industrial shredders to shred and process automobiles and other scrap metal for resale. According to documents filed in the case and other information, on January 6, 2011, Erik Hilario was working at the East Point facility. At approximately 11:00 p.m. that night, Hilario was operating a front end loader, removing scrap metal from the yard when the loader caught fire. Hilario was badly burned and died shortly thereafter.

New Call-to-action After Hilario’s death, his parents and the administrator of his estate filed suit, naming several corporate entities with “Newell” in their names as defendants. The nature of Newell’s operations and its corporate structure, which included approximately 30 separate corporate entities, made the identification of the proper defendants a major issue in the case. At the time of his death, Hilario received paychecks from Newell Recycling, LLC. The East Point facility itself was owned by Newell Recycling of Atlanta, Inc. In the lawsuit, Newell Recycling of Atlanta, Inc., was named as a defendant, but Newell Recycling, LLC was not.

Prior to trial, defendants moved for summary judgment on the grounds that Hilario was an employee of Newell Atlanta and that, therefore, the claims in this case were barred by the exclusivity provisions of the Workers’ Compensation Act. According to the defense, Newell Recycling was merely an administrative services company providing payroll services for Newell Atlanta and various other Newell companies operating businesses in other locations. 

The defense said that Newell Recycling and Newell Atlanta operated under the terms of an Employee Leasing Agreement where, for a fee, Hilario and other employees were leased to Newell Atlanta and were, therefore, considered employees of Newell Atlanta for workers' compensation purposes. Plaintiffs, on the other hand, pointed to various corporate documents indicating that Newell Atlanta and Newell Recycling were independent contractors. In addition, according to plaintiffs, Newell Recycling had the right to determine Hilario’s pay and promote or fire him.

Judge Diane Bessen denied the defense’s motion for summary judgment on this issue, ruling that it was up to the jury to decide whether Hilario was an employee of Newell Atlanta at the time of his death or not. By the time the trial began, Newell Atlanta was the only remaining defendant in the case.

Under plaintiff’s theory of the case, the fire was caused by gasoline that had leaked from a machine called a puncher that was used to punch holes in automobile gas tanks and drain them before the cars were crushed and shredded. Once holes were punched in the gas tanks, the gasoline was supposed to drain into a container in the puncher where it could safely be disposed of. Under plaintiff’s theory, enough gasoline spilled out on the ground in the path of the loader Hilario was driving so that when he pushed scrap metal along the paved surface, the friction created a spark that ignited the gasoline.

At trial, plaintiffs are alleging two theories of liability, premises liability and product liability. Judge Bessen denied defense motions for summary judgment and dismissal on both theories. In her view, it was a jury issue whether Newell Atlanta failed to maintain a safe work area and failed to have adequate safety equipment available in the event a fire did occur. Following this decision, Newell Atlanta amended its answer and now admits  that the fire was caused by spilled gasoline and that it is liable under a premises liability theory (subject to a possible workers’ compensation bar).

Judge Bessen also denied Newell Atlanta’s motion to dismiss on a product liability theory in regard to the design of the puncher. Newell Atlanta claimed that Georgia product liability law did not apply to this case because the puncher was only used internally by Newell employees and never sold to the general public. However, Judge Bessen ruled that the sale of the product is not an essential element of a claim that a product was defectively designed or that the manufacturer failed to adequately warn. This issue was also left for the jury to decide.

The product liability claim may be a factor in the size of the eventual verdict in this case, because plaintiffs are requesting punitive damages. The Georgia statutory cap of $250,000 on punitive damages does not apply to product liability claims.  

This trial is expected to continue into next week. Courtroom View Network will have full gavel-to-gavel converage of the trial after it concludes.

Steve Silver can be reached at ssilver@cvn.com.

 

Watch on-demand video of the trial as soon as it becomes available. 

 

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Topics: Negligence, Wrongful Death, Georgia, Hilario v. Newell Recycling

Attorney Compares Client's Injury to Football Concussion to Win 12-Year-Old Case: GA Trial Highlight

Posted by Steve Silver on Aug 25, 2015 4:43:07 PM

 

According to an old legal saying, “justice delayed is justice denied.” In a recent Henry County Superior Court case, plaintiff Nita King faced that very possibility, as her lawsuit resulting from a July 18, 2002, automobile accident did not finally go before a Superior Court jury until February, 2015, almost 12 ½ years later. Nita King v. Olin Wayne Davis (DECEASED) 2008-SU-CV-3386.

The accident occurred when Olin Davis, driving a Dodge Ram truck, pulled out of a lane of traffic and ran a red light. King, who was approaching the intersection with the green light, was unable to react in time and collided with Davis’s truck. Davis’ attorneys admitted liability for the accident prior to trial but questioned the extent of King’s injuries and whether they resulted from the collision.

The case was complicated by several issues related to the passage of time. Defendant Davis died in 2012 of causes unrelated to the accident, so his testimony was presented by means of a transcript from earlier proceedings. As for King, she had been involved in four other traffic accidents since the collision involving Davis, even one in which she struck a deer. Each time, King reported injuring her back, neck, and knee, which she also alleged occurred in the original 2002 accident.

Click Here FREE Georgia Trial Video Samples When King testified, she said she suffered memory loss, depression, and an inability to concentrate, in addition to her physical pain, after the accident. She was unable to go back to work for nearly a year after the accident, and her subsequent work history was spotty. She also said that her injuries never really healed, and the subsequent injuries merely aggravated them. Friends and relatives also testified as to the change in King’s mental condition after the 2002 accident.

Defense attorney Adrian Britt, in his closing statement, tried to seize on the subjective nature of King’s complaints and what he felt was a lack of support in the evidence for them. He told the jury he believed the case was about “over treating soft tissue injuries in an automobile accident that thankfully looks worse than it was.” He also pointed out numerous inconsistencies between King’s trial testimony and other sworn statements King had given over the years.

In addition, Britt pointed out the various x-rays, CAT scans and other tests King had been given that did not show any abnormalities. Indeed, he suggested to the jury that the sole purpose for all the tests, and for much of the other treatment King received, was to “run up the medical bills.” Britt concluded, “There is no abnormality in this case; nothing’s wrong. Five years later, slew of more tests, and still nothing’s wrong but the subjective complaints of the plaintiff’s that keeps causing people to run tests.”

In some trials, this strategy might have been effective. However, despite Britt’s contentions, King’s attorney Graylin Ward had already been able to show the jury some extremely objective evidence. King had testified at the trial that her head hit the car’s dashboard as a result of the collision. As a result, she suffered facial scars and, most significantly, a visible skull indentation. During King’s testimony, Ward had her show the jury her scars and skull indentation. He also showed the jury photographs of King during his closing statement.

In that closing statement, Ward asked the jury to consider the effect that impact had on King. In his view, as confirmed by his medical witnesses, the blow to the head was the reason for King’s mental problems over the years, as she and her witnesses had testified. Ward put the impact in a context to which a jury could relate, the often violent head injuries suffered by athletes like football players and boxers.

Ward noted that if such an athlete complained of post-concussion syndrome, people would not find such a complaint unlikely. He continued that King’s injury was similar, “That was a terrible impact; it was a horrible impact. She injured her head.” He noted that athletes who suffered similar blows complained of similar mental symptoms years later.

Ward noted that the changes in King’s behavior all occurred after the accident: “After she hit her head in the car that day, it changed her. She went from being a vibrant person to one who [said she had a] ‘daily depression,’ losing a lot of weight, being distanced from the family. … She went [to doctors] for years and they couldn’t figure out what was wrong with her. Sounds kind of similar to pro football players, sounds kind of similar to basketball players, sounds similar to boxers who all of a sudden have that syndrome that’s causing them to be that way. That’s what we have.”

Ward also got in the last word, after Britt’s closing statement, as he again showed the jurors King’s facial photos. “They say a picture is worth a thousand words… A permanent injury, a serious blow to the head, the injury that you saw, that Ms. King came before you; she showed you that injury still exists. An injury where a doctor has said she has post-concussion syndrome is worth $100,000.”

For the most part, the jury agreed with Ward. They awarded King $85,567.21 for her own damages and an additional $7,350.80 in damages for her then two-year-old son, who was also injured in the accident, for a total judgment in her favor of $92,918.01.

Courtroom View Network's earlier articles on the case can be found here and here. Steve Silver can be contacted at ssilver@cvn.com.

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R.J. Reynolds Cleared in $16M Suit over Fatal Lung Disease

Posted by Arlin Crisco on Aug 21, 2015 2:42:29 PM

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Cory Hohnbaum delivers the closing argument for R.J. Reynolds in a trial against the company over the respiratory disease that caused Renato Santos' death. Jurors found Santos' widow failed to establish Engle class membership required in her $16 million suit against the company. 


Miami—R.J. Reynolds prevailed this week in a suit brought by the widow of a Cuban immigrant who died from respiratory disease after decades of smoking the tobacco company’s unfiltered cigarettes. Santos v. R.J. Reynolds, 2008-CA-000849.

Watch Video from Tobacco Trials Jurors took less than three hours to find Renato Santos was not a member of the Engle class of smokers suing the nation’s tobacco companies for diseases caused by nicotine addiction. Santos, who immigrated to the U.S. in 1962, smoked Reynolds-brand Pall Mall cigarettes for more than two decades over a half-century of smoking. He quit smoking in 1990 after being diagnosed with chronic obstructive pulmonary disease and emphysema, and was 80 when he died from the diseases in 2007. His wife, Rebecca, sought more than $16 million from Reynolds, claiming the company’s deceptive marketing led to her husband’s nicotine addiction and death.

The trial turned on whether Renato Santos was addicted to nicotine and whether it ultimately caused his respiratory disease, two elements required to establish Engle class membership. During closings Monday, Koch, Parafinczuk & Wolf’s Justin Parafinczuk told jurors that Santos’ nicotine addiction was so strong he could only quit smoking after his diagnosis of respiratory disease. “At that moment (of diagnosis), without any availability to any cigarettes whatsoever, he quit because he wanted to be with his family,” Parafunczuk said. “He wanted to stay and live the rest of his golden years with his family and his grandchildren.”

However, Reynolds attorneys argued that Santos smoked by choice rather than because of addiction. During Tuesday’s closings, King & Spalding’s Randall Bassett reminded jurors of evidence that Santos succeeded in his first quit attempt. “You’ve heard argument about, somehow, tobacco companies got a hook on Mr. Santos and kept him smoking for 50 years,” Bassett said. “How can they have a hook on him and keep him smoking when the only time he tried (to quit) was one time in 1990, and he quit permanently?”

Bassett also reminded of evidence that, prior to 1990, Santos reportedly said “You have to die of something,” in response to repeated warnings about smoking. “Those (words) told you the attitude of Renatos Santos, who he was,” Bassett said.

However, Parafinczuk argued that Santos’ words were taken out of context. “Are we to (infer) from that (statement) that he wanted to smoke cigarettes for 50 years and cause his own death?” Parafinczuk asked. “I don’t think so. I think Renato was just speaking as a strong man, and I think maybe he was being just a bit sarcastic.”

The Santos case is among thousands of similar Florida lawsuits against U.S. tobacco companies. The cases arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although the state’s high court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. However, individual plaintiffs must establish class membership by proving both nicotine addiction and a causal link to a smoking-related disease.

Neither the parties’ attorneys nor Reynolds representatives could be reached for comment.

Email Arlin Crisco at acrisco@cvn.com.


Related information

Rebecca Santos is represented by Austin Carr and Koch, Parafinczuk, and Wolf's Justin Parafinczuk. R.J. Reynolds is represented by King & Spalding's Randall Bassett and Cory Hohnbaum.

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Topics: Negligence, Products Liability, tobacco, Florida, Santos v. R.J. Reynolds

High-Powered Defense Team Helps BNSF Crush Rail Yard Worker's Injury Suit

Posted by David Siegel on Aug 19, 2015 11:26:00 PM

Davidson_v._BNSF_closingDefense attorney Anthony Sonnett walks jurors through how they should complete the verdict form in a personal injury trial against BNSF Railway Co. Click here to see video from the trial. Click here for a copy of the complaint. 

San Bernardino — Berkshire Hathaway Inc.-owned freight rail giant BNSF Railway Co. was cleared by a state court jury on Tuesday in a personal injury lawsuit filed by a fireman who was pinned against a guardrail by a utility cart during a late-night shift in a California train yard.

The unanimous 12-member jury reached a verdict after less than a full day of deliberations following a trial that began August 12, finding that plaintiff Charles Davidson’s co-worker Jose Avalos was engaged in horseplay when he struck Davidson with a cart he was driving in 2009, according to a Courtroom View Network webcast of the trial. (Click here to see video from the trialClick here for a copy of the complaint.) 

Davidson sued BNSF under the Federal Employees Liability Act, a statute passed by Congress in 1908 to compensate injured railway workers. However under the statute railway operators cannot be held liable for employee misconduct like horseplay. Davidson initially claimed to suffer knee injuries after Avalos mistakenly drove the cart forward instead of in reverse and struck him, but later stated during deposition testimony that Avalos was chasing another cart in the yard.

“A railroad has no duty to protect an employee from the horseplay of another employee,” BNSF attorney Anthony Sonnett of litigation powerhouse Lewis Brisbois Bisgaard & Smith LLP told the jury during his closing argument.

The firepower of the plaintiff and defendant’s respective legal teams seemed fairly lopsided on paper. Davidson was represented by a solo practicioner who tried the case without co-counsel, while Sonnett is vice-chair of Lewis Brisbois’ products liability practice group. BNSF was also represented by James Brooks, a Lewis Brisbois partner specializing in railroad litigation who is a member of the firm’s 68-member transportation practice group.

 Sonnett told jurors that Davidson, who was 28 at the time of the accident, lied in his initial accident report and complaint against BNSF, when he claimed Avalos accidentally drove the supply vehicle known as a “honey wagon” forward. In his deposition Davidson said he made that story up to protect his friend Avalos, but that faced with the prospect of testifying under oath he had to disclose what really happened, and that Avalos was actually trying to hit another cart when he struck Davidson.

However Davidson later claimed in sworn declarations that he had no “personal knowledge” Avalos was engaged in horseplay at the time of the incident, and Davidson’s attorney Don Burns told jurors during his closing argument that Avalos struck Davidson while trying to park the honey wagon. Burns argued that Avalos was acting as a BNSF employee at the time, and that under FELA the company is responsible for his actions.

“When he was parking in front of the yellow rail, that is exactly what he was required to do to fulfill his job responsibilities that night,” Burns said. “That’s not horseplay, that’s not fooling around.”

In response Sonnett repeatedly called Davidson’s credibility into question during his closing, suggesting that he and his attorney were trying to “slip one by” the jury.

“The only one who ever says that Mr. Avalos was parking this car is the plaintiff’s attorney," Sonnett said. “There is not one statement or implication from anyone that was a witness to this incident that that’s what was appending at the time of this incident.”

He suggested that the version of events in Davidson’s sworn deposition testimony made the most sense, and that Avalos had been engaged in conduct outside the scope of BNSF's responsibilty. 

During his rebuttal Burns argued that even if Avalos was engaged in horseplay at some point that night, that at the moment he struck Davidson he was parking the honey wagon, which would still make BNSF liable for Davidson’s injuries.

“What he had done earlier I don’t care. What he does later I don’t care,” Burns told the jury. “I’m focused on what he was doing the instant he hit Chuck Davidson.”

The trial was bifurcated by Judge Donna Garza and jurors only considered the issue of whether or not Avalos was engaged in horseplay, so they never heard any argument related to the specific extent of Davidson’s injuries or damages.

“This was a relatively simple case,” Sonnett told CVN. “Although there was conflicting evidence on the issue, the most credible evidence presented during trial was that horseplay was involved.”

Burns did not respond to a request for comment.

The full trial was recorded and webcast gavel-to-gavel, and is available for viewing in CVN’s online video archive.

The case is Charles R. Davidson III v. BNSF Railway Co., case number CIVBS1200419, in the Superior Court of the State of California for San Bernardino County.

E-mail David Siegel at dsiegel@cvn.com

Click here to check out more California trials in CVN’s one-of-a-kind online video archive

Topics: Negligence, Transportation, California

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