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How Do Actos Lawsuits Work?

A Complete Overview of Actos Bladder Cancer Cases by Texas Drug Injury Attorney Michael Grossman

Although most people are aware that the popular drug Actos has been linked to serious side effects (namely, bladder cancer) and that thousands of lawsuits have been filed against the drug's manufacturer, very few people understand how these cases work.

In this article, we will explain every aspect of Actos lawsuits, including:

  • How to file an Actos case
  • That Actos claims are "Multi-District Litigation" cases (we'll explain what that means and how it works)
  • What your rights are if you've been injured by Actos
  • What types of compensation you can sue for

Let's begin with the basics:

What is Actos?

Actos is the brand name of the drug pioglitazone. This formula was developed by the Japanese drug conglomerate Takeda Pharmaceutical Company Limited, and is sold in numerous countries, though it is only branded as "Actos" for sale in America. The drug's stated purpose is to treat diabetes mellitus type 2, while providing a lower risk of heart conditions relative to other diabetes medications.

What Side Effects Prompted Legal Action Against Takeda (the makers of Actos)?

The particular alleged symptoms which prompted legal action are:

  • Heart failure
  • Kidney damage
  • Bladder cancer
  • Brittle bones

Grossman Law Offices is currently only pursuing legal action against Takeda specifically for bladder cancer injuries. As these cases have progressed, the other alleged side effects have proven more difficult to link to Actos consumption, yet we feel that the evidence showing that Actos causes bladder cancer is quite compelling, and numerous juries have agreed.

Why Are People Suing Takeda?

In order to adequately answer that question, it's helpful to first understand what causes a drug manufacturer to incur legal liability in under American law.

First, let's talk about how "ordinary" injury and death cases work. Most injury or wrongful death cases are based on "common law" theories of liability. Under common law, which just means "court-decision created law" or "precedent," all persons and business owe one another a duty to not inflict harm caused by carelessness. Now, the duty that any particular person owes to another can vary from instance to instance, and the degree of duty that someone owes usually all depends on their relationship to those that stand to be harmed by their carelessness.

What we mean by that is that not everyone is held to the same standard, and those who meet certain criteria are often held to higher standards. If someone:

  • Is in a position of trust
  • Is in a position of authority over other people
  • Holds themselves out as an expert
  • Profits from dispensing goods or services

...the law usually holds them to a higher standard than everyday people are held to. For instance, a doctor is a professional provider of highly specialized treatment, and he is trusted by patients to provide appropriate care in exchange for profit. Therefore, he is held to a higher standard when he dispenses medical care than, say, you would be if you recommended to a relative that they take an Aspirin for a headache. If you think about it, by telling a relative what drug to take, you're essentially dispensing medical advice, but since you don't hold yourself out as an expert, you are held to a much lower standard as a doctor would be in doing the exactly same thing. This makes sense when you consider the way society wants the world to work. We want people who sell their services to be accountable for those services, but we don't want friendly advice to result in significant legal liabilities for everyday folks anytime advice or recommendations are made.

So the novel solution derived from common law is that everyone owes a duty to everyone else, but the degree of duty owed is determined by whether or not one of the parties holds themselves out as some type of professional. If you are not a doctor and you make a good faith representation to a family member that they should take Aspirin, and that recommendation causes them to be harmed, then you technically have done nothing wrong (legally speaking), since you owe such a low standard of care to them. But if your relative goes to a doctor and the doctor errs in recommending a medical procedure that causes harm (or misdiagnoses a disease, or botches a surgery, etc.), then the doctor does incur liability for the harm caused, precisely because of the high standard of care that he owes his patients. The takeaway here is that the duty imposed on anyone at any point in time is directly tied to the interaction they have with the people they owe the duty to. Extremely high standards of care (that is to say, high duties) are imposed on those who society feels are really in a position to hurt someone if they don't do their job correctly.

All that we have discussed so far to explain duty and standard of care is really just taking a peek behind the curtain at the topic of "negligence." Negligence is what we call it any time that someone who owes a duty breaches said duty, resulting in harm to someone else. In the examples above, the doctor owed a duty not to do X but did it, resulting in liability for his negligence. Meanwhile, in the example where someone suggested to a relative to take a drug that ultimately causes an injury, such conduct does not constitute negligence, since there was no duty that was breached. Breach of a duty is a requirement for establishing negligence, and negligence must be proven to beat someone in an ordinary injury based in common law.

Now, claims against the makers of Actos are not truly based on common law principles. Instead, such cases fall into the realm of "products liability," which, in most states, is not recognized as age-old, court-invented law, rather, products liability laws are created through bills passed by lawmakers in a state's congress. In creating these laws, lawmakers definitely did draw from the wealth of knowledge found in common law, but since they were drafting fresh laws, they really had a chance to pick and choose what they wanted the law to say. And when it came time to choose what degree of duty would be imposed on the makers of products, lawmakers chose to impose a standard called "strict liability."

Under the application of strict liability, you don't need to show that the maker of the product was negligent in order for them to be liable. Instead, one must only prove that the product was unreasonably dangerous and that the manufacturer failed to warn customers of the danger. That's it.

But why did lawmakers impose such a burden on product manufacturers. The answer is not so much a legal justification as it is a common sense approach. When a manufacturer makes some good, they are in the best position to know how it works, what it's capable of, and how it should and should not be used. Lawmakers thusly decided that the buck stops with the maker of the product, and that if it does something unreasonably dangerous, the manufacturer is liable by default, not only when you prove that they were negligent. If such a burden is placed on manufacturers, then you can rest assured that they will be hyper-vigilant in understanding their product and its capabilities before they sell it to the public.

Despite the burden that is placed on manufacturers, they also benefit from a "get out of jail free card" in the ever-present warning label... if they do it right. We've all seen how virtually every product for sale these days contains a warning label. The reason these labels are so popular is because manufacturers are essentially absolved of liability (barring a few exceptions) if they warn customers of potential dangers inherent in the product. A manufacturer can either build a product that is entirely safe or they can build a product with some safety inherent hazards, so long as they inform the consumer that such hazards exist. When manufacturers fail to adequately alert customers to hazards associated with the use of a product, this can result in liability for the manufacturer in what we call a "failure to warn" case, and that's precisely the direction Actos cases are going in.

As it relates to Actos, the accusation against Takeda is that the drug produced a very serious side effect (bladder cancer) which they failed to warn consumers about. Had Takeda informed consumers that Actos use may cause cancer, then they still would have been able to sell the drug, and consumers and their doctors could make an educated decision as to whether the benefits of taking Actos were worth the risk of cancer. But since that didn't occur, and since Actos was a drug whose main selling point was that it was a "safer" alternative to other diabetes drugs, consumers elected to consume Actos under allegedly false pretenses.

There are two main allegations against the maker of Actos:

  • There are many side effects that are caused by Actos consumption
  • Takeda failed to warn consumers about several important symptoms

You need not sue Takeda for "negligently manufacturing" Actos. It may have indeed been properly produced, yet it is still allegedly dangerous for the reasons mentioned. Other accusations allege far more nefarious conduct on behalf of Takda, such as their alleged cover-up and/ or willful misrepresentation of Actos test results.

What Compensation Can Victims Receive?

The short answer is that every state has somewhat different laws regarding what specific types of losses you can sue for, and those laws dictate the specific answer, but, generally speaking, you can sue to be compensated for:

  • Injury compensation:
    • Pain and suffering
    • Medical bills
    • Loss of earning capacity / lost wages
    • Mental anguish
  • Wrongful death compensation:
    • Mental anguish
    • Loss of consortium
    • Burial and funeral expenses
    • Loss of society
  • Exemplary compensation
    • Compensation for punitive damages

But drug injury cases are bigger than simply compensating victims. They're about sending a message to drug makers that there are consequences for rushing drugs to market, not adequately testing drugs, and failing to warn consumers about the inherent dangers of a product.

If you believe that you have been injured by taking Actos, or if you believe that a relative lost their life due to cancer caused by Actos, then you have the right to sue for compensation.

How Do Actos Cases Work?

In normal car accident cases, for example, one defendant (the person who is alleged to have caused the harm) injures one plaintiff (the victim). A lawsuit is filed in a local court and the case is fairly straightforward. Everyone is at least somewhat familiar with this process. However, what happens when one driver causes a pileup that hurts or kills dozens of people? What if the accident is so bad that it kills hundreds of people? Thousands? At some point, there would be so many claimants filing lawsuits against the defendant in so many different courts that it would create a logistical nightmare.

The same is true of drug injury cases. Thousands of people from all around the USA are reporting problems caused by Actos, and many are suing. If these cases were treated like regular injury cases, Takeda would spend a fortune just flying their attorneys back and forth to the various courthouses all across the country in which the suits were filed. Not to mention that it would result in mass confusion for Takeda's attorneys as they tried to understand how to apply the rules of evidence and/or court procedure for 50 different states.

The solution to this dilemma is the modern Multi-District Litigation process (abbreviated as MDL). In a nutshell, MDL works like this:

  1. A special panel of federal judges are constantly on the lookout for cases which feature high volumes of lawsuits against a single defendant, stemming from the same alleged misconduct.
  2. When they find such a scenario, they often elect to have all of the hundreds or thousands of cases filed across the country transferred to a single federal court that one of the panel's judges presides over.
  3. A single plaintiff's law firm is selected to handle all pretrial litigation against the defendant in accordance with the Federal Rules of Civil Procedure. As such, the plaintiffs build their cache of evidence to be used against the defendant, and the judge goes about their normal task of ruling on the admissibility of evidence, striking down testimony, and hearing motions, as they would in any other case.
  4. Once this process has concluded, a "package" of allegations, evidence, etc. becomes the byproduct of the process, and that package can be shared by all plaintiff's lawyers throughout the country who represent victims.
  5. Once the aforementioned "package" is made available, victims can then pursue their case in their local federal court, or they can have their case tried in the court that is presiding over the MDL process (subject to some caveats). It is important that suit be filed early in the process in order to "hold your place in line," but after that your case will essentially be in a holding pattern until this and the next phase are complete.
  6. A handful of cases called "bellwether cases" are selected through an elaborate process, resulting in a sampling of cases that are tried before juries. The outcome of these cases serves as a guide for determining the value of all subsequent cases up and down the spectrum. A good selection of bellwether cases will include cases with minor injuries and cases with major injuries or death. What we're trying to learn through this process is what the minimum and maximum compensation is that juries are likely to award. By providing such a floor and ceiling on case value, the defendant can adequately judge the value of all subsequent cases against them.
  7. If the bellwether cases go well for the plaintiffs, the defendants will usually propose a settlement protocol wherein they settle with all victims individually, but through an alternative system other than court. It's their way of saying, "Okay. We get it. If every plaintiff takes us to court, we're going to keep losing, so we'd like to settle instead." However, if the bellwether cases do not go well for plaintiffs, then the defendants will either refuse to settle, and all cases must be tried until the plaintiffs either give up, or the defendants will offer to settle for pennies on the dollar. We are of the opinion that if juries do not feel that a defendant is liable in the bellwether cases, the defendant should not be forced to pay, so we advise our clients not to haphazardly continue their suit against the defendant. That said, by design some bellwether cases will fail. Part of the process of feeling out the value of both good cases and not-so-good cases means that the not-so-good cases get their day in court too. What matters are the trends. Do most cases win or lose? That's really what the bellwether cases are trying to determine.
  8. It is important to understand that MDL cases are not at all like a class action. In a class action, one person is accepted by the court as a "representative" of the class, and they and their attorneys handle the whole thing ON BEHALF OF all claimants. In other words, in a class action case, you are on the sideline while some law firm you never agreed to hire is appointed to pursue the case for you, ultimately to settle for an amount that you have no say in without consideration of your particular losses. But in MDL, the cases are "consolidated" just for the initial phase, which is actually quite beneficial for claimants since it keeps every plaintiff from having to incur the same court costs as the same process of discovery is repeated over and over again. Once the consolidated discovery phase has wrapped up, you are free to pursue your case with an attorney of your choosing, you control how the settlement process works, and you ultimately settle only for an amount related to your specific injuries.

Current Status of Actos Litigation

Actos cases are MDL cases, and they have been transferred to Judge Rebecca Doherty's United States District Court for the Western District of Louisiana under docket number 6:11-md-2299. At the current stage of Actos litigation, several bellwether cases have gone to trial resulting in several significant, favorable plaintiff's verdicts. While it is still early in the process (at the time of this writing), it seems fairly obvious to us that the settlement process will begin soon enough, in which the various plaintiffs' lawyers across the country, like us, will began the task of negotiating with Takeda's lawyers to settle our clients' individual cases. In other words, there appears to be some light at the end of the tunnel in litigation that we began pursuing in mid 2011.

Are You Required to Pursue the Case in MDL?

No. Clients can elect to pursue their case independent of the MDL docket. That said, there are a variety of benefits to the MDL, the primary one being that the overwhelming majority of cases are going to be processed in the MDL, so being the "odd man out" usually means that your case does not benefit from the collective muscle of all of the other cases in the MDL. Further, the defendants are focused on the MDL more so than individual cases, so going outside the MDL is a good way to get your case ignored by the defendants. There are instances where we advise clients to file outside of the MDL, but Actos cases are not such an example, typically.

Are You Required to Pursue the Case in Louisiana?

If you wish to participate in the MDL, yes. However, once the initial phases are tackled, the case gets transferred back to your local federal court anyway, so it's not really worth focusing too much concern on this particular topic. Plus, your attorney may very well recommend that you file directly into the MDL court, so the case essentially becomes a Louisiana case once you do so, though this is not a requirement.

Choosing the Right Attorney

One last topic that needs to be covered is that of choosing the right attorney. MDL cases, and Actos cases in particular, are not something that every law firm understands. In fact, few lawyers have any familiarity with products liability cases. Further, there are many borderline fraudsters who zero in on cases like this. Technically, their methods are aboveboard due to the fine print of their disclaimers, but their practices are hard to defend as being in their clients' best interests. The particular practice we're referring to is that of the "middle-man" philosophy of having clients hire your firm only to refer their cases to a firm that actually does the work. Grossman Law Offices does not practice in this fashion. Perhaps there is some reason that makes using one of these referral firms a good idea, and if that's more to your liking, then do not let us dissuade you. However, from our perspective, we think law should be practiced the way it was intended: a lawyer maintaining a relationship with a client in an ongoing basis while maintaining responsibility for that client's legal well-being, throughout.

Lastly, since Actos cases have largely been consolidated to a single court in Louisiana, and many of them will stay there. Choosing an attorney based on geography is not likely your best strategy. Lawyers from all over the country are handling Actos cases in Louisiana, so do not make the mistake of assuming that you need an attorney in your own backyard like you would for a normal personal injury case. All of the understood camaraderie between local lawyers and local judges doesn't apply to federal judges who are appointed for life and whose docket covers large swaths of geography. Your best bet is to find an attorney who specializes in these cases, irrespective of his location. And the law firms who are most familiar with these cases are usually not based in small towns; they're usually found in cities like Dallas, Houston, New York City, Chicago, or Los Angeles.

For more information, call us any time toll-free at 1-855-326-0000 to discuss your case in a free consultation.

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