The second Actos lawsuit, An v. Nieberlein, concluded earlier this month in Baltimore and for a second time the plaintiff was left without a recovery. The plaintiff, Diep An, started taking Actos in 2007 to treat his Type 2 diabetes. His family maintains they were not made aware of the link between Actos and bladder cancer at this time. In 2011, the US Food and Drug Administration issued a warning that suggested the use of Actos for more than one year significantly increased the risk for bladder cancer. After using Actos for four years, An was diagnosed with bladder cancer and died as a result in early 2013. At trial, evidence showed that An had a smoking habit for a 30-year period but had quit 15 years prior to his cancer diagnosis. The jury found that Takeda had been negligent in its failure to warn and awarded An’s family $1.75 million, but also found that he contributed to his own death through failure “to exercise reasonable and ordinary care for his own health.”
Maryland is one of few remaining states that recognize contributory negligence as a complete bar to recovery. This means that if any percentage of fault for the injury is attributable to the plaintiff, they are barred from recovering anything from the defendant. Because of this, the jury award of $540,000 to An’s widow for loss of consortium, $330,000 to the estate for non-economic damages, $295,000 to the estate for past medical expenses, and $200,000 to each of the three children – was all thrown out by the judge according to Maryland law.
Still, the fact that the jury found Takeda negligent and the judge upheld this finding is a positive sign for pending Actos lawsuits. In the first Actos case, Cooper v. Takeda Pharmaceuticals, Inc., a jury found in favor of the plaintiff and awarded him $6.5 million, however, post-verdict Takeda argued that the plaintiff failed to prove that Actos caused his cancer and the judge threw the award out. The most recent case in Maryland is a definite improvement as Takeda’s negligence was established and upheld.
This news is especially positive for states, including Florida, that do not recognize contributory negligence. Florida, for example, follows a system of comparative fault. Under a comparative fault system, a negligent plaintiff is not barred from recovery. Instead, the plaintiff’s award is lowered in proportion to the amount of fault the jury finds them responsible for. The third Actos case is scheduled to begin this month in Las Vegas. Nevada follows a modified comparative negligence system, meaning that an injured party can recover so long as his or her fault does not exceed 50 percent. The most recent estimate suggests there are roughly 3,000 Actos claims currently pending and many more should be set for trial in the coming months.
If you or someone you know developed bladder cancer following the use of Actos, you may be entitled to compensation for your injuries. Please contact the experienced personal injury attorneys at Sibley Dolman Gipe Accident Injury Lawyers, PA for a free consultation and case evaluation. (833) 606-DRUG .