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Actos Bladder Cancer Feud Brewing between Takeda and Eli Lilly

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Indianapolis, INFurther complicating recent reports that defendants Takeda Pharmaceutical Co. (Takeda), and Eli Lilly & Co. (Eli Lilly) are expected to appeal a $9 billion jury award to Actos bladder cancer plaintiffs Terrance and Susan Allen, are rumblings of a brewing feud between the two defendants over indemnification.

At the time that plaintiff Terrance Allen was using Actos to help manage his Type 2 diabetes, Eli Lilly was involved with Takeda in a marketing capacity for Actos, which is manufactured by Takeda. The bellwether verdict in the first federal Actos case awarded $6 billion in damages against Takeda and $3 billion in damages - all punitive - against Eli Lilly.

However, according to various reports, Lilly doesn’t think it has to pay, based upon a claim that Takeda agreed to indemnify Eli Lilly against any potential losses resulting from litigation. Thus, for this and perhaps any future Actos lawsuit that also names Eli Lilly as a defendant, Lilly claims its agreement with Takeda takes them off the hook.

Takeda, in a statement, disputes that claim. So not only is the $9 billion award expected to be appealed, there remains this looming fight between Takeda and its former marketing partner Lilly as to who owes what.

Caught in the middle are plaintiffs Terrance and Susan Allen. Terrance, a former shopkeeper, faces his own battle with Actos side effects beyond the expected wait time involved to sort out the pending legal challenges. And while court cases can drag on indefinitely, Allen’s clock is ticking due to his diagnosis of bladder cancer.

Allen’s claim - one that has been mirrored in practically every Actos bladder cancer lawsuit - is that plaintiffs did not know about the potential for Actos and bladder cancer, and might have switched to an alternative drug in order to avoid the risk, had they known.

A further allegation is that Takeda knew about the potential link with bladder cancer even before Actos was approved, given observation during testing that bladder cancer was observed in test animals prior to approval. The Allen lawsuit further maintained that subsequent clinical trials on human subjects also revealed an Actos and bladder cancer link. Takeda is accused of keeping quiet on that front.

Most will recall that Actos was the number two drug prescribed to manage Type 2 diabetes, behind Avandia, until Avandia was called out several years ago over allegations regarding high risks to the cardiovascular system. While the potential for Actos heart failure was also a factor in the Takeda product, the risk was thought to be smaller and, thus, doctors felt Actos was a safer alternative to GlaxoSmithKline’s Avandia. According to court documents, at its peak in 2011, Actos represented 25 percent of Takeda’s total sales, with more than $16 billion in sales since Actos was approved.

There was no reference to Actos bladder cancer at the time. There have been further allegations that Actos allowed the destruction of documents pertinent to the Actos file.

Eli Lilly served as Takeda’s marketing partner for Actos from 1999 through 2006. The case is Allen et al v. Takeda Pharmaceutical Co. Ltd. et al., Case No. 6:12-cv-00064. The case is part of the Takeda MDL In re: Actos (Pioglitazone) Products Liability Litigation, Case No. 6:11-md-02299, both in the US District Court for the Western District of Louisiana.

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