Actos News

Actos Maker Intentionally Destroyed Evidence, Judge Rules
June 20, 2014

A federal judge in Louisiana has ruled that Takeda Pharmaceuticals intentionally destroyed evidence relevant to multidistrict litigation involving Takeda’s diabetes drug Actos. The ruling affects over 6,000 lawsuits that have been consolidated before U.S. District Judge Rebecca Doherty, who issued today’s ruling. Plaintiffs in those cases have charged Takeda with concealing evidence and failing to warn patients and health care providers that Actos significantly increases the risk of bladder cancer.

Earlier this year, Judge Doherty presided over the first federal bellwether trial (the first trial[s] in new litigation to help set the bar for future cases) against Takeda and its U.S. partner, Eli Lilly & Co., which concluded in April with a jury awarding $9 billion in punitive damages against the two drug makers and $1.5 million in actual damages to the plaintiffs, Terrence and Susan Allen. Mr. Allen was diagnosed with bladder cancer in 2011 and suffered severe and permanent injuries according to his lawsuit.

In a pre-trial ruling in that case, Judge Doherty ruled that Takeda was not merely negligent but had acted in “bad faith” in destroying evidence that was relevant and the absence of which was prejudicial to the plaintiff. Following closing arguments, the judge also instructed the jury that they were free to infer that the missing documents would have been helpful to the plaintiffs and harmful to Takeda “if you feel the evidence you have heard supports that inference.”

“Takeda acted in bad faith in its destruction of documents,”
Judge Doherty stated in her ruling
Today’s “Final Memorandum Opinion and Ruling” by Judge Doherty affirms and clarifies the previous ruling, at the same time supplementing it based upon additional evidence presented at trial. The judge makes particular note of the fact that well before the trial began Takeda was “on full and complete notice” that the court had found sufficient evidence to charge the company with document destruction and that it would need to answer that finding or “risk the consequence of such a finding becoming final.” Yet Takeda has yet to produce a court ordered representative to give testimony on key discovery facts and allegations of document destruction. In her ruling, Judge Doherty agrees with the plaintiffs that such behavior is “evidence of Takeda’s deliberate and bad faith attempt to hide its preceding intentional document destruction….”

The judge points to several other examples of Takeda’s behavior during discovery that suggest an intentional effort to hide and avoid revealing evidence, calling the declaration of one key Takeda witness “highly questionable, at the very best.” Judge Doherty finds that Takeda, during a time period extending from before any MDL [multi-district litigation] lawsuit was filed through the trial itself, engaged in conduct designed to hide its destruction and deletion of files, conduct she characterized as a “willful abuse of the judicial process.”

The judge ordered Takeda to “continue to reconstruct all deleted files.” She deferred a final determination of the “final impact and cost of Takeda’s conduct” and a “determination of attorney fees” arising out of Takeda’s misconduct until the completion of document reconstruction and a resolution of discovery disputes.

Judge Doherty also addressed Takeda’s ongoing failure to provide reliable and credible corporate representatives for court ordered depositions related to document destruction. She ruled that, should the plaintiffs determine such depositions are required, “this court will so order and orders that all reasonable costs of this deposition, including attorney’s fees, shall be borne by Takeda.” The judge further ruled that following such a deposition, and after a careful comparison of the new responses to those given in earlier depositions, that expenses related to those earlier depositions could be shifted from the plaintiffs to Takeda.


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