IBJNews

Lilly ordered to pay $3 billion in Actos damages

Back to TopCommentsE-mailPrintBookmark and Share

Takeda Pharmaceutical Co. and Eli Lilly and Co. on Monday were ordered to pay a combined $9 billion after a federal court jury found they hid the cancer risks of their Actos diabetes medicine in the first U.S. trial of its kind.

Indianapolis-based Lilly, Takeda’s partner, was ordered to pay $3 billion, an amount that represents nearly 13 percent of its 2013 revenue total of $23.1 billion.

Takeda, based in Osaka, Japan, was ordered to pay $6 billion in punitive damages by the jury Monday in Lafayette, La. Its shares fell as much as 5.2 percent Monday in Tokyo, their biggest decline since March 2009.

“I hope Takeda executives in Japan heard what this jury had to say loudly and clearly,” Mark Lanier, a lawyer for former Actos user Terrence Allen, said after the verdict. The jury earlier awarded $1.5 million in compensatory damages to Allen, who blamed the drug for his cancer.

Takeda, Asia’s largest drugmaker, faces the Actos claims after it scrapped development of another diabetes drug this year when research linked it to liver damage. More than 2,700 Actos suits have been consolidated before U.S. District Judge Rebecca Doherty in Louisiana for pretrial information exchanges, according to court dockets. Doherty presided over Allen’s trial.

The $9 billion jury award, the seventh-largest in U.S. history based on data compiled by Bloomberg, is almost certain to be reduced because the U.S. Supreme Court has said punitive verdicts must be proportional to the awards of compensatory, or actual damages that underlie them. The country’s highest court has said that in some cases, punitive awards that amount to ten times a compensatory award would be acceptable.

Of the 10 largest U.S. punitive verdicts previously awarded against corporations, all were either reversed or substantially reduced. None were paid at the amounts assessed by the juries.

“Takeda respectfully disagrees with the verdict and we intend to vigorously challenge this outcome through all available legal means, including possible post-trial motions and an appeal,” Ken Greisman, general counsel for Takeda’s U.S. unit, said in an e-mailed statement.

“We also believe we demonstrated that Takeda acted responsibly with regard to Actos,” Greisman said.

Candace Johnson, a spokeswoman for Lilly, said in an e-mail that the company is confident Actos is an important option for the treatment of type 2 diabetes.

“While we have empathy for the plaintiff, we believe the evidence did not support claims that Actos caused his bladder cancer,” Johnson said. “We intend to vigorously challenge this outcome through all available legal means, including possible post-trial motions and an appeal.”

"Under its agreement with Takeda, Lilly said it "will be indemnified by Takeda for its losses and expenses with respect to the U.S. litigation and other related expenses in accordance with the terms of its indemnification agreement." 

Market reaction

Atsushi Seki, an equities analyst at Barclays Plc in Tokyo, said any efforts to reduce the verdict should be watched carefully. The market took about 40 percent to 50 percent of the payment into account when it comes to Takeda and that’s an overreaction, Seki said.

Allen sued both Takeda and Eli Lilly over Actos. Lilly served as Takeda’s U.S. partner in selling and marketing the drug over a seven-year period starting in 1999. While that partnership ended in 2006, Lilly continued to have rights to sell Actos in parts of Asia and Europe, as well as in Canada and Mexico.

After the verdict, Lanier exchanged celebratory high-fives with member of his legal team outside the courtroom. He said evidence presented in the trial showed Takeda agreed to indemnify Lilly for any legal liability tied to Actos. That means that Takeda will probably be on the hook alone for whatever the final amount turns out to be.

Bruce Parker, a lawyer who represented both Eli Lilly and Takeda in the two-month trial, declined to comment as he was leaving the courtroom.

The Louisiana jury is the fourth panel to have weighed allegations that Takeda marketed Actos knowing it could cause cancer and failed to properly warn doctors and consumers about the risks.

Last year, state juries in California and Maryland ordered Takeda to pay a total of $8.2 million in damages to former Actos users. Judges in both states threw out the verdicts. Jurors this year in state court in Las Vegas rejected claims the company failed to properly warn consumers about the risks of Actos.

Generic competition

Actos sales peaked in the year ended March 2011 at $4.5 billion and accounted for 27 percent of Takeda’s revenue at the time, according to data compiled by Bloomberg. Actos has generated more than $16 billion in sales since its 1999 release, according to court filings. Takeda now faces generic competition from Ranbaxy Laboratories Ltd.

The verdict comes as both companies battle rising competition from cheaper generics. Takeda has seen earnings decline due to generic competition on Actos, once the world’s best-selling diabetes medicine, and Lilly has seen treatments for pain and schizophrenia lose market share to lower priced copies.

Takeda, which traces its origins to a medicine wholesale business opened in Osaka in 1781, has been making acquisitions and hiring senior executives from overseas to globalize its business in recent years.

New chief

It has hired French national Christophe Weber as chief operating officer and plans to name him chief executive next year, which would make him the first non-Japanese leader in Takeda’s history. Takeda in February predicted net income would fall 24 percent to a 15-year low of $971.5 million for the year ending March 2014.

Lilly in January reported that fourth quarter sales fell about 2 percent, to $5.81 billion.

In addition to the federal court lawsuits, Takeda and Lilly face hundreds more claims over Actos in state courts including Nevada and Illinois.

Lawyers in an Actos case that began in state court in Las Vegas in February have said they are seeking more than $1 billion in compensatory and punitive damages for two women who blame the drug for their bladder cancers.

Allen alleged in the Louisiana case that he developed bladder cancer after taking Actos for more than five years starting in 2006. Lanier had said before the trial he was seeking at least $15 million in damages for the former hardware- store manager from Attica, New York.

Misleading regulators

Allen alleged in his lawsuit that Takeda executives ignored or downplayed concerns about the drug’s cancer-causing potential and misled regulators about its risks to protect billions in sales.

Takeda didn’t provide a specific warning about Actos’ cancer risks until 2011, seven years after experts said the bladder-cancer link became clear and 12 years after the drug went on the U.S. market, Lanier said.

Takeda executives said in e-mails that Actos “was vital to the company’s survival” and that prompted the drugmaker to drag its feet in acknowledging the medication’s cancer risks, Lanier said.

Takeda officials intentionally destroyed documents about the development, marking and sales of Actos, Lanier said. The company ditched files of 46 former and current employees, including those of top executives in Japan and U.S. sales representatives, he said.

Documents destroyed

Because Takeda failed to properly protect the Actos documents, Doherty penalized the company by instructing jurors they could infer that the files may have buttressed Allen’s claims the company wrongfully hid the medication’s health risks.

“The breadth of Takeda leadership whose files have been lost, deleted or destroyed is, in and of itself, disturbing,” Doherty wrote in a January ruling that opened the door for jurors to hear about the destroyed documents.

After deliberating for about four hours yesterday, jurors found Takeda and Lilly “failed to adequately warn” about Actos’ bladder-cancer risks and that the drug caused Allen’s disease, according to court filings.

Jurors also found Takeda and Lilly executives “acted with wanton and reckless disregard” for patients’ safety in their handling of the drug and that justified a punitive damage award against both companies.

“This verdict sends a message that you must put the health and safety of Americans ahead of profits or American juries will have the courage and resolve to hold global corporations accountable,” Neil Overholtz, a Florida lawyer who represents former Actos users, said in an e-mailed statement.
 

ADVERTISEMENT

  • Does Anyone Think Anymore?
    This mentality is so aggravating. "Big, bad corporations" are made up of thousands of individuals who have families to feed and bills to pay. Why anyone would think the 40,000 employees of Lilly are out to screw people is beyond me. Do you think the scientists at the heart of the company, working every day to make people's lives better, are sitting there trying to find ways to screw people? (The scientists don't get paid more if a drug goes to market sooner, they just improve lives quicker - that is their main goal.) They are underpaid and underappreciated. You think the individuals who work in marketing, accounting, procurement, HR manufacturing, etc. go to work every day to try to screw the users of their products? Really? Please, think about that for a minute. And, Young Hoosier, I guess we should tell every business in the United States that it is responsible for every act of every company with which it does business. If a company/buyer purchases products from another company/seller and that company/seller ends up screwing up, the company/buyer of the product must pay, too, because, afterall, it entered into a contract with that company/seller. So, we want to make every company in America an insurer of every business it works with. Does that makes sense? Do you think that might cost businesses something? Do you think that would really efficient if every company had to test every product it resells before it resold it, rather than relying on a seller's testing practices and the regulatory system? Wait! I have a solution. We'll just tell companies they have to change their business models: RESELLING SHOULD BE MADE ILLEGAL! Afterall, there is a chance the original manufacturer of the product screwed up and you, reseller, might not know it. Yes, every company that sells a product must also have invented, designed, manufactured and tested those products itself. That might work!? Let's tell you all how to do business because we surely don't want anyone to get away with operating a company that might rely on the skills and expertise of another company. Welcome to the world of senseless, reactionary, thoughtless hatred of "big, bad corporations" (which provide jobs and livelihood to obviously big, bad people). Lilly, please close your doors and move elsewhere, to a more friendly business climate. We don't want you here. You and your 40,000 employees are wicked and shameful and trying to screw everyone out there. We've had enough of you and all the other big, bad corporations out there and we are not going to take it anymore.
  • The price of doing business
    Give a little, screw a lot
  • @Lilly supporter
    Thank you for clarifying that definition. While that changes my understanding of the situation somewhat, its still a question of leadership and personal responsibility. If you are a partner in the undertaking, someone within your organization needs to step up and take responsibility for mistakes; its not simply a case of being able to shrug your shoulders and pin it on solely on Takeda, even if most of the blame indeed lies with them.
  • PS
    so no one has concluded that Lilly "intentionally hid" the fact that the drug causes cancer.
  • Lilly Indemnified
    For those of you who are not familiar with commercial transactions and indemnification provisions, the fact that Lilly is likely to get full indemnification means generally that Lilly before Lilly agreed to resell the product, it said "if you (TAkeda) cause us or anyone else damages because of YOUR negligence (not ours), then its not our fault, and you must indemnify (reimburse) us." These provisions are important in negotiations and generally require that the party at fault reimburses the party NOT at fault. Lilly was just the reseller, not the manufacturer of the product. It can't run trials on all the products it resells for outside manufacturers. This is normal business practice.
  • Lilly
    Lilly does seem to bear an unfair burden in the local media, especially for the great things they do for our city. That said, intentionally hiding the fact that a supposedly helpful drug can cause cancer is a fairly big deal. If Lilly gets a public slap on the hand for this one, I'd say its pretty well-deserved. Undoubtedly if you were in Mr. Allen's position, you'd be upset too, no?
    • Sensationalism
      Although technically true the headline is once again an overblown attempt to draw in readers. When will this publication realize the readers are smarter than that
    • Stop the Hating
      It is so odd to me that the reporting on Lilly in this town is so universally negative and, as mentioned above, misrepresented and/or incorrectly negatively hyped. The company has done so much for this community, usually quietly, but the media fails to recognize it as the local angel it is - just more cliche "corporations are bad" mentality. Ever stop to think about how many people are employed by this company, how many people in this community are RELATED to or friends with those people employed by this company, how much good Lilly does on its local "Day of Service" (usually underreported) or how many philanthropies, charities and community events are supported by this company and its employees? Please stop the hating and show some love for this important resource.
    • Wrong Headline
      If Takeda is contractually bound to indemnify Lilly for this liability, the headline is totally misleading. Takeda is on the hook for the payment, not Lilly. And 10 out of 10 previous judgments have been reduced in size. Thanks for inaccurately hyping this story.

    Post a comment to this story

    COMMENTS POLICY
    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
     
    You are legally responsible for what you post and your anonymity is not guaranteed.
     
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in IBJ editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
     
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
     
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
     

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by
    ADVERTISEMENT

    facebook - twitter on Facebook & Twitter

    Follow on TwitterFollow IBJ on Facebook:
    Follow on TwitterFollow IBJ's Tweets on these topics:
     
    Subscribe to IBJ
    1. How much you wanna bet, that 70% of the jobs created there (after construction) are minimum wage? And Harvey is correct, the vast majority of residents in this project will drive to their jobs, and to think otherwise, is like Harvey says, a pipe dream. Someone working at a restaurant or retail store will not be able to afford living there. What ever happened to people who wanted to build buildings, paying for it themselves? Not a fan of these tax deals.

    2. Uh, no GeorgeP. The project is supposed to bring on 1,000 jobs and those people along with the people that will be living in the new residential will be driving to their jobs. The walkable stuff is a pipe dream. Besides, walkable is defined as having all daily necessities within 1/2 mile. That's not the case here. Never will be.

    3. Brad is on to something there. The merger of the Formula E and IndyCar Series would give IndyCar access to International markets and Formula E access the Indianapolis 500, not to mention some other events in the USA. Maybe after 2016 but before the new Dallara is rolled out for 2018. This give IndyCar two more seasons to run the DW12 and Formula E to get charged up, pun intended. Then shock the racing world, pun intended, but making the 101st Indianapolis 500 a stellar, groundbreaking event: The first all-electric Indy 500, and use that platform to promote the future of the sport.

    4. No, HarveyF, the exact opposite. Greater density and closeness to retail and everyday necessities reduces traffic. When one has to drive miles for necessities, all those cars are on the roads for many miles. When reasonable density is built, low rise in this case, in the middle of a thriving retail area, one has to drive far less, actually reducing the number of cars on the road.

    5. The Indy Star announced today the appointment of a new Beverage Reporter! So instead of insightful reports on Indy pro sports and Indiana college teams, you now get to read stories about the 432nd new brewery open or some obscure Hoosier winery winning a county fair blue ribbon. Yep, that's the coverage we Star readers crave. Not.

    ADVERTISEMENT