First Actos Bladder Cancer Award Overturned

Actos is a Type 2 diabetes drug which can allegedly increase a patient’s chances of developing bladder cancer. Alleging that the manufacturer failed to provide adequate information and warning to doctors and patients, multiple lawsuits have been filed for compensation – and, in April 26, the first of these was awarded $6.5 million.

Actos cancer cases will sooner or later be successful, paving the way for current and future plaintiffs to seek compensation.

Now, unfortunately, a judge has overturned that ruling – though this may have more to do with the legal process of the specific case than the reputed side effects of Actos.

The case of Jack Cooper was expedited after his cancer, allegedly linked to his use of Actos, metastasized. It was the first such case – out of thousands, and thousands more potential cases – to reach this stage. Cooper and his lawyers argued that Takeda, the drug’s maker, failed to warn adequately of Actos’ side effects. A nine-week trial saw a jury award Cooper $6.5 million, based partly upon the expert testimony of Dr Norm Smith. As Cooper’s causation expert, Dr. Smith had hypothesized – with reasonable surety and the support of the wider medical community and studies – that Actos was the cause of the plaintiff’s cancer. It was this claim that Takeda asked be excluded, arguing that hypothesis and possibility were not, under the law, the same as certainty. Studies, including a Canadian investigation in 2012, have found that Actos usage increases bladder cancer risk by up to 83%.

Surprisingly, Takeda’s argument seemed to hold water, and the judge ruled that Dr. Smith’s testimony be excluded. With the advice dismissed, Judge Kenneth Freeman then agreed that there was no evidence before the court to support the jury’s previous verdict – which, in turn, meant a non-suit, with the award overturned.

That a jury’s decision should be later overruled by a single judge based upon the inadmissibility of expert opinion raises serious questions, though it is perfectly valid under California law. What does seem reasonable to assume, however, is that Actos cancer cases will sooner or later be successful, paving the way for current and future plaintiffs to seek compensation.

Cooper’s lawyers have said that they intend to appeal – an appeal which may end up being more about the judge’s ruling on the legal matter than the jury’s ruling on the facts.