BY DAVID SIEGEL
Las Vegas, NV – After deliberating for less than a day, a Las Vegas jury returned a verdict this week saying Actos, a medication widely prescribed to treat diabetes, did not cause bladder cancer in plaintiff Alan Alsabagh.
This is only the third time a jury has decided an Actos lawsuit and the first time the drug’s manufacturer, Takeda Pharmaceutical, has been been cleared of all liability. The verdict came after nearly three weeks of argument and testimony in Nevada state court.
Alan Alsabagh developed terminal bladder cancer after taking name brand Actos manufactured by Takeda to treat his type Type 2 diabetes, but also purchased generic versions of the drug from online pharmacies based outside of the United States. At the time the Food and Drug Administration had approved name brand Actos, but not the generic versions. The FDA finally did approve a generic version of Actos for the first time 2012.
During closing arguments, D’Lesli Davis of Fulbright & Jaworsky LLP, representing Takeda, explained to jurors how drugs ordered from these online pharmacies often did not receive appropriate handling, were passed from warehouse to warehouse around the world under questionable conditions and were also subject to seizure in the United States by customs officials. “The question on this issue is not whether you think it’s okay or not okay to order drugs from Canada,” said Davis. “The question is did Mr. Miller (plaintiff’s attorney) meet his burden to prove to you that Takeda manufactured the drugs that Mr. Alsabagh got.”
Davis also focused on the lack of available medical records for the plaintiff, who immigrated to the United States from Lebanon in 1988. Davis explained how bladder cancer has a long latency period and can take 10-15 years to develop, but that Alan Alsabagh could not produce any consistent medical records to demonstrate Actos as the only possible cause for his bladder cancer until he had already started taking the drug. Davis asked the jury, “How important is it to you, before you can make a decision that Actos caused bladder cancer, how important would it be for you to have medical records from before Mr. Alsabagh actually took Actos. Is that something critical to know?” Davis also reminded jurors of Alsabagh’s history as a smoker, one of the leading causes of bladder cancer.
In his closing arguments representing the plaintiff, attorney Michael Miller of The Miller Law Firm LLC, told jurors Takeda deliberately ignored evidence that Actos caused bladder cancer in order to maintain revenues generated by the extremely popular drug. He also reminded the jury Actos had been banned in France and Germany after regulators discovered an increased risk of bladder cancer. Miller emphasized a label change to Actos packaging, which included a warning of increased risk of bladder cancer, after he’d started taking the drug. “There is a major label change a year after Mr. Alsabagh got bladder cancer. That was too late for Mr. Alsabagh, plain and simple,” said Miller.
The first federal trial involving Actos litigation is scheduled to begin next month in Louisiana, where over 1,000 individual cases have been consolidated before United States District Judge Rebecca F. Doherty. The verdict in the Alsabagh case is now particularly significant, since juries in the only two other Actos cases to go to trial found in favor of the plaintiff. In April a Los Angeles Superior Court jury awarded $6.5 million in damages to plaintiff who claimed Actos caused his bladder cancer. In September a Maryland jury awarded $1.7 million to another plaintiff with bladder cancer, but in both cases the verdicts were later thrown out by the trial judge.
Courtroom View Network recorded gavel-to-gavel video of the full proceedings in Las Vegas, in addition to the first Actos trial earlier this year in Los Angeles. Video coverage of civil jury trials is not permitted in Maryland state court.
The Las Vegas case is Allen K. Alsabagh v. Takeda Pharmaceutical America Inc.,et al., case number A-12-655741-C before Hon. Susan Johnson in Clark County District Court, Nevada.