A plaintiff in an Actos product liability lawsuit has prevailed in an appeal after a trial court granted defendant pharmaceutical company a judgement notwithstanding verdict and tossed the jury’s finding in favor of plaintiff.
Now, in Cooper v. Takeda Pharmaceuticals, case has been remanded back to trial court with instructions to reinstate the jury’s original verdict and enter a damage award in favor of plaintiff.
To offer some background: Actos is a type of diabetes drug that has been linked to a number of dangerous medical conditions, including congestive heart failure (heart attacks) and bladder cancer. Although consumers are instructed to avoid the drug except as a “last resort” due to the risks, the drug has been aggressively marketed as a first-resort and the risks largely downplayed or denied by the company.
In the Cooper case, plaintiffs in this product liability lawsuit included the patient who consumed the drug and his wife. He was prescribed the drug to treat his type 2 diabetes. The pair alleged the husband developed bladder cancer as a result of his ingesting the drug. He reportedly consumed it from 2006 through 2011, until he was diagnosed with bladder cancer.
The case went before a jury in 2013. That jury, after weeks of hearing evidence and expert witness testimony, decided the case in favor of plaintiff. Defendant was deemed liable for strict liability failure to warn, negligent failure to warn and loss of consortium.
Specifically, the jury decided defendant did not give adequate warning to plaintiff’s doctor regarding the risk of bladder cancer when taking the drug. This failure, the jury found, was a substantial factor in causing harm to plaintiff.
Jury awarded damages of $5 million to husband and $1.5 million to his wife for loss of consortium.
Defendant had, before, during and after trial, challenged the admissibility of expert witness testimony from an expert urologic oncologist, who testified on the issue of causation. He asserted defendant’s product was a substantial factor in causing plaintiff’s bladder cancer. His opinion was based largely on his own review of 15 epidemiological studies, which he noted had all received consistent results.
At trial, court allowed this testimony to be heard. However, it was later stricken after the judge determined testimony was “speculative.” It was based on this decision court granted defendant’s motion for judgment notwithstanding verdict, deciding that without that expert witness testimony, the jury could not have concluded the drug caused plaintiff’s injuries.
Plaintiff appealed to the California Court of Appeal, Second Appellate District, Division Three. That court reversed.
Appeals court decided first that trial court erred in disallowing the expert witness testimony to be considered. It challenged the reason for this ruling, which was that the expert failed to rule out all other possible causes for plaintiff’s cancer. However, the appeals court noted there was no substantial evidence presented that any other cause might be relevant. For this reason, appellate court ruled that the trial court had exceeded the boundaries of its gatekeeping duties with regard to the admissibility of complex scientific testimony.
Therefore, the court reversed and remanded with instructions to reinstate the jury’s damages.
If you have been injured due to a defective drug, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Cooper v. Takeda Pharmaceuticals, Aug. 13, 2015, California Court of Appeals Second Appellate District, Division Three
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Phillips v. Harmon – Spoliation of Evidence in Medical Malpractice Lawsuit, July 24, 2015, Florida Defective Drug Lawyer Blog