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Despite a Finding for Negligence, Actos Bladder Cancer Plaintiff Loses Case

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Baltimore, MDDespite a Baltimore jury finding that Takeda Pharmaceuticals Inc. was negligent in its failure to warn doctors about the potential for Actos bladder cancer and assessed damages against the company for $1.75 million, the most recent Actos bladder cancer lawsuit provided an empty victory for the plaintiffs due to Maryland law.

Diep An, a diabetic and former smoker who died January 14 of last year, was prescribed Actos for the treatment of Type 2 diabetes. His family maintains they were not made aware of the link between Actos and bladder cancer when An was prescribed the medication in 2007. The US Food and Drug Administration (FDA) issued a warning in 2011 that suggested the use of Actos for greater than one year significantly increased the risk for bladder cancer.

An was on Actos a total of four years, until his diagnosis for bladder cancer in September 2011. The defense at trial argued that there was no scientific link to Actos and the plaintiff’s bladder cancer, and that An’s previous 30-year smoking habit contributed to his own death. While An was a smoker at one time, testimony at trial revealed the plaintiff was never a heavy smoker to begin with and had ceased smoking some 15 years before his bladder cancer diagnosis.

Nonetheless, according to The Daily Record (9/26/13), the jury in the An’s Actos bladder cancer lawsuit - while finding for the plaintiff - also found that An had contributed to his own demise due to his former smoking habit and had failed “to exercise reasonable and ordinary care for his own health.”

Maryland recognizes contributory negligence, which in the state bars recovery of any kind in a tort lawsuit.

To that end, the September 26th jury award of $540,000 to An’s widow, Camhong, 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 rendered moot by state law. Thus, in spite of finding for the plaintiffs and ruling that Takeda had been negligent in failure to warn, the $1.75 million award was not entered due to the jury’s finding of contributory negligence.

A previous report in Bloomberg News (9/4/13) indicated that An’s legal team had planned to introduce documents supporting an allegation that Takeda knew as early as 2005 that studies had shown a potential link between Actos and bladder cancer, as well as Actos heart attack, but failed to warn.

It is not known if the An family is considering an appeal. A third Actos bladder cancer lawsuit is scheduled to begin next month in Las Vegas. There are thousands more in the pipeline.

The case was An v. Nieberlein, Baltimore City Circuit Court No 24C-12003565.

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