Washington Supreme Court Admits Expert Affidavits and Allows Malpractice Case to Proceed

sleep-apnea-osathThe Washington State Supreme Court ruled that an untimely affidavit was admissible and that the trial court erred in granting summary judgment in the defendant’s favor. The reversal of the lower court’s summary judgment ruling allows the medical malpractice to proceed.

Plaintiff Darla Keck underwent a sleep apnea procedure performed by defendants Dr. Chad Collins and Dr. Patrick Collins. The surgery was intended to open Ms. Keck’s airways to improve her breathing.

Keck alleged the doctors failed to exercise the appropriate standard of care and complained about the quality of post-surgery care she received.

The doctors moved for summary judgment claiming Keck lacked a medical expert to substantiate her claim.

On appeal, the court considered two issues:

  • The appropriate standard of review for a challenged ruling to strike untimely evidence;
  • Whether the expert witness’s affidavit showed a genuine issue for trial.

Sleep Apnea Surgery Gone Bad

After the initial surgery in January, Keck experienced green pus from a surgical wound and severe pain. Keck developed an infection in her jawbone. Following this discovery, Dr. Chad prescribed antibiotics and subsequently performed surgery to clean the infected area and remove plates and screws in Keck’s jaw.

This surgery resulted in the plaintiff’s jaw being wired shut. Three months later, a second surgery was performed to clean and install more hardware. The surgeries did not resolve the issue because Keck continued to experience pain and swelling. She was even able to move the loose hardware with her finger.

Six months after the initial surgery Keck sought a second opinion and underwent a third surgery to correct the issues with her jaw.

Untimely Affidavits

The plaintiff’s counsel filed three affidavits, two timely and one untimely. The untimely affidavit was eliminated by the defendant’s motion to strike.   The court of appeals believed all three affidavits were admissible because one contained sufficient facts to defeat summary judgment.

The affidavit at issue explained that the standard of care in the State of Washington was violated and the physicians failed to address Keck’s non-union and infection appropriately. The affidavit states “with regards to follow up care, the surgeons were sending Ms. Keck to a general dentist as opposed to an oral surgeon, a plastic surgeon, or an Ear Nose and Throat doctor.”

This affidavit was intended to supplement  previous affidavits in the event the judge believed the first and second were insufficient to defeat summary judgment.

Appropriate Standard of Review

The state supreme court believed the court should have used a Burnet analysis to decide whether excluding the untimely affidavit.

This analysis considers the following factors:

  • Whether a lesser sanction would probably suffice
  • Whether the violation was willful or deliberate; and
  • Whether the violation substantially prejudiced the opposing party.

The trial court failed to consider any other Burnet factors simply because the affidavit were untimely. This court believed all of these factors should be considered before striking an important piece of evidence. Because of the court’s failure to apply the factors, the affidavit was admissible.

In a medical malpractice case, Keck is required to prove the treatment fell below the standard of care and proximately caused her injuries. The defendants argued the second affidavit did not provide any details about what standard of care applied.

However, the affidavit explicitly stated, the physicians failed to examine the failure of the jawbone to heal naturally and a subsequent paragraph stated the doctor’s referrals were improper. The court concluded, all affidavits were admissible and presented enough information to present the case to a jury.

This case is Keck v. Collins, et al., Case No. 90357-3, Supreme Court of the State of Washington.

Eleventh Circuit Reinstates Rotting Wood Class Action Suit

A three-judge panel in the Eleventh Circuit reinstated a class action suit against a wood supplier accused of selling wood susceptible to rotting. The wood rotted after three years, even though it was advertised to last 15. lumber one

The panel followed the Supreme Court’s decision in Shady Grove Orthopedic Assoc. v. Allstate Insurance Co., which decided under Rule 23 a class action could proceed in federal court even when state law restricts them. 559 U.S. 393 (2010).

Lumber One Wood Preserving LLC allegedly did not properly treat its wood as advertised and as a result, the wood rotted quicker.

1/3 Less Time Than Advertised

The plaintiff, Robert Lisk purchased products from a Lumber One distributor, Clean Cut, to build a fence at his home and claimed the wood was not properly pressure-treated. He filed suit under the Alabama Deceptive Trade Practices Act (ADTPA) and alleged a breach of express warranty.

Lumber One stated in its website, advertising, and product labels that the wood would remain free from rot, fungal decay, and termite attack for at least 15 years. Lisk’s wood rotted three years after installation; he filed suit to represent consumers who had purchased the company’s defective wood.

The court believed Lumber One had an obligation to comply with the ADTPA and make accurate representations of its products. The plaintiff and other consumers have a substantive right to seek redress due to the company’s misrepresentations, said the court.

Third-Party Beneficiary Claim

Lumber One contested the plaintiff’s claim for relief as a third-party beneficiary of the express warranty. The court concluded Lisk sufficiently pled all elements of the express warranty claim.

A third party beneficiary must show that: 1) the parties intended to provide a direct benefit to the third-party at the time the contract was created; 2) the complainant was the intended beneficiary to the contract; and 3) the contract was breached.

Lisk properly alleged the elements when he presented information showing the company sold products to customers like himself, and the materials were not up to the standard advertised by Lumber One.

This case was remanded to the United District Court for the Northern District of Alabama.

Robert C. Lisk, individually and on behalf of a class of similarly situated persons v. Lumber One Preserving LLC Case No. 14-1174, United States Court of Appeals for the Eleventh Circuit

5 Top Botched Plastic Surgery Verdicts

15808369526_6f2300b989_oThere are 14.6 million cosmetic plastic surgeries completed every year in the US, including Botox, laser hair removal and breast implants. However bad results like infections, allergic reactions, blood clotting under the skin, scarring and deaths have led to large recoveries by plaintiffs.


5.  Disfigured breast cancer survivor awarded $1.1 Million

A 49-year-year-old Nassau County, New York, woman who overcame breast cancer after a lumpectomy and a course of chemotherapy and radiation treatment, wanted to even out the appearance of her breasts, believing they were “no longer symmetrical.”  The plastic surgeon suggested a breast augmentation and a breast lift, the latter of which the plaintiff declined.  The surgeon also negligently told the plaintiff that the risk of serious complications with this surgery was only one to two percent, although the statistics printed on his forms stated a risk of up to 20 percent.  An expert plastic surgeon testified that due to the plaintiff’s radiation treatments, the risk of serious complications were as high as 50 percent.

After the original breast augmentation and two additional surgeries, the plaintiff had a “gaping wound under her left breast, a grossly deformed left breast, and significant asymmetry” in her breasts.  The plaintiff required two subsequent corrective surgeries from another surgeon, and despite the corrective surgeries, she was left with permanent “extensive scarring and deformities.”

In the 2005 trial, a jury awarded the plaintiff $1.1 million for past and future pain and suffering, lost earnings, and medical expenses.

The case is Klein v. South Shore Cosmetic Surgeons P.C. Et Al. case no. 22 NY. J.V.R.A. 6:C4 in the Nassau County, New York Supreme Court.

4.  “Dr. Lips” manslaughter and malpractice case with $2.5 Million verdict

Tamara Matatoff of Miami, Florida, underwent a tummy tuck and thigh trim surgery from Dr. Ricardo Samitier, who advertised himself as “Dr. Lips.” The surgery left her unable to stand up straight for a year after the surgery.  Dr. Samitier promised Matatoff that her surgery would take 1-1/2 hours and that she would be healed enough to attend her son’s wedding, which was a month after the surgery.  The surgery took five hours, during which Matatoff was bleeding so heavily that Dr. Samitier “stitched Plaintiff up in a sitting position on the operating table.”

Dr. Samitier was not present for the trial, because he was in jail pending criminal actions in a case for which he was eventually convicted of manslaughter when a patient, undergoing liposuction surgery and a penis-enlargement surgery, bled to death during the operation.  Dr. Samitier was sentenced to five years in prison.  After the trial in 1994, the jury awarded Matatoff $2,375,000 and her husband $125,000 for loss of consortium.

The cases are Tamara Matatoff & Amnon Matatoff v. Dr. Ricardo Samitier, Jr. and Medical Surgical Centers of America, INC., Case no. 94 FJVR 11-34 in the Miami-Dade County Florida Circuit Court, and Samitier v. State, Case no. No. 94-2568 in the Florida Third District Court of Appeals.

3. $40 Million verdict for liposuction wrongful death

Joel Cunningham, 33, of New York City, died while undergoing abdominal liposuction procedure where plaintiff’s estate asserted that the physicians negligently administered anesthesia, causing his death.  Medical examiner found cause of death to be complications of local and general anesthesia, as autopsy revealed toxic levels of lidocaine in Cunningham’s body.  During the surgery when Cunningham’s heart rate and blood pressure dropped, the surgeon and anesthesiologist were negligent in their delayed resuscitation and reintubation efforts because the batteries in a laryngoscope were dead.  Although the defendant surgeon, a resident, was only to assist in the procedure, the defendant anesthesiologist asked him to begin the surgery until the scheduled surgeon arrived.  The scheduled surgeon never arrived.

The defendant anesthesiologist was on professional probation at the time of the surgery for alcohol and substance abuse, and required a supervising anesthesiologist be present while performing anesthesia, although none was present at the time of surgery.  The anesthesiologist also listed and forged the signature of another surgeon on the record for Cunningham’s procedure, although that surgeon was not at the center on the day of the surgery.

The center advertised that a “world renowned surgeon” directed the facility, but in reality, it had no medical director on staff, no verification of the employed physician’s credentials, and no medical malpractice insurance.

The jury awarded $40 million in punitive damages against the owners of the center, and another $ 363,000 in compensatory damages against the defendant surgeon and anesthesiologist in a 2003 trial.  The verdict was later reduced to $5 Million in 2004.

The case is Brown v. Lafontaine-Rish Medical Associates Case No. 20 NY. J.V.R.A. 7:C1 in the Bronx County, New York Supreme Court.

2.  $60 Million initial verdict for vaginal deformity caused by thigh lift surgery

Allison Yusefa Hugh of Bronx County, New York, lost 200 pounds after undergoing gastric bypass surgery and was left with excessive skin on her legs.  She underwent a thigh lift surgery to remove the skin.  She claimed that the surgeon failed to inform her of the risks associated with the procedure, including the risk of injury and deformity to her vagina.  Hugh alleged that too much skin was removed during the procedure, causing tension near her groin area, causing a flattening and pulling open of her vagina.  The skin pulling also caused the wound to break down and bleed.

A jury initially awarded Hugh $60 million for past and future pain and suffering after the 2009 trial, but the verdict was later reduced in two subsequent retrials, from $4 million down to $600,000 during the final trial held in 2011.

The case is Hugh v. Ofodile M.D. Case no. 20473/05 in the Bronx County, New York Supreme Court.

1.  Initial $825 Million verdict after 13 corrective surgeries to repair breast disfigurement

Christy Aills of Plantation, Florida, underwent a breast implant and breast lift during the same procedure in April 2003.  Aills alleged the surgeon failed to inform her of the risks associated with performing both implantation and a lift during the same procedure, which led to her traumatic injuries, requiring 13 additional unnecessary corrective surgeries.  The jury initially awarded Aills $825 million in 2006, but it was later reduced in a 2010 retrial to $2 million.

The case is Aills v. Boemi Case no. 04-003135CA in the Lee County, Florida Circuit Court.

$22.4 Million Verdict Affirmed in “Blast-Fax” Class Action



A federal judge in New Jersey affirmed a $22.4 million statutory damage award to class members for the defendant’s violation of the fax advertisement law under the Telephone Consumer Protection Act.

Business owners can be held directly liable for unsolicited fax advertisements sent by third party agencies promoting the business’s goods or services under the Telephone Consumer Protection Act or TCPA.

The TCPA nor the court distinguished between phone calls and faxes. With this recent decision it is possible more companies may face claims for blast-fax campaigns.

City Select Auto Sales and other businesses sought relief after the defendant, David Randall Associates, a roofing company, authorized a third party — Business to Business — to transmit unsolicited advertisements 44,832 times to 29,113 different fax numbers.

Several other businesses complained about the faxes and stated the ‘opt out’ 800 number was unavailable. A number customers also threatened to file action against Randall. Despite the complaints, the defendant continued to have fax blast campaigns sent.

Sent ads without permission

The class action complaint alleged the defendant sent advertisements to thousands of fax numbers without prior permission or invitation.

The defendant moved for summary judgment, stating the plaintiff class failed to state a claim under TCPA because the defendant was not physically sending the faxes. The motion was denied.

The TPCA prohibits unsolicited advertisements without the prior consent of the recipient. It is the plaintiffs’ burden to sufficiently establish:

  1. The defendant utilized a “telephone facsimile machine” to send one or more faxes.”
  2. that the transmissions constituted “advertisements.”
  3. that the defendant sent he transmissions without the recipient’s consent, absent application of a statutory exception.


Defendant liable for third party advertiser

Addressing each element, first the court determined the advertisement focused on David Randall’s roofing services and were approved for transmission by the owner.

Second, fax advertisements are not prohibited if the sender is a business with an existing relationship with the recipient and the sender obtained the fax number through a website.

According to the FCC, this alone does not permit someone to pull the fax number from an existing website and begin blast-fax campaigns. The advertiser must obtain consent from the recipient to legally solicit business through fax.

This leads to the third element where there must be evidence that the class action members sufficiently publicized their numbers or had a relationship with the defendant. Sufficiently publishing means either directly providing the information or providing express permission.

In sum, to advertise via fax legitimately, the sender must have a record that the recipient gave permission or directly provided the information to the sender. Without the recipients consent the business advertising the goods or services can be held liable for the actions of third party entities.

In the court’s recent decision in Palm Beach Golf Center-Boca, Inc v. Sarris, it found the defendant liable for his connection to a third party advertiser, which faxed unsolicited dental advertisements to the golf center. 771 F.3d 1274 (11th Cir. 2014).

Relying on this decision, the court re-emphasized the entity can be held strictly liable for unsolicited advertisements despite not physically sending the fax under the TPCA.

City Select Auto Sales Inc v. David Randall Associates, Inc, et al., No 11-2658, 2015 WL 1421539 (D.N.J. March 27, 2015)


Montana Court Affirms $3.9 Million Judgment in Logging Injury Case

logging truck

After arriving at the mill, the plaintiff released the load from his truck and several logs fell on him. This accident caused serious injuries.

The Montana Supreme Court affirmed the $3.9 million entry of default judgment against a corporation for failure to respond to multiple services of process from the plaintiff. The defendants failed to comply with a court approved agreement and failed to present a good faith cause to vacate the decision.

Plaintiff Allen Ginn was a log hauler for Ginn Trucking. In July 2008, the plaintiff delivered a load to a mill owned by Smurfit-Stone Container.

Smurfit was a paperboard and paper-based packaging company, which is now owned by RockTenn, a manufacturer in corrugated and consumer packaging.

Defendant files in bankruptcy

After arriving at the mill, Ginn released the load from his truck and several logs fell on him. This accident caused serious injuries. Six months later, the defendant filed voluntary bankruptcy proceedings, which established a bar on claims prior to the petition.

Ginn and his wife filed a motion in October 2011 in the bankruptcy proceedings requesting:

  1. leave to file a late claim.
  2. relief from the plan injunction and its automatic stay.
  3. that the Bankruptcy Court abstain from hearing the case in federal court, and allow the Ginns to file the claim in Montana.


Following this motion, the parties stipulated Smurfit would reserve $1.4 million and 25,000 shares of stock to satisfy any possible settlement or judgment and keep the case in state court.

No response

Complying with the agreement the Ginns’ counsel timely filed the complaint and served the defendant’s general counsel on or around July 9, 2012. The defendant did not respond.

After July 30, 2012 Ginns’ counsel contacted defendant’s counsel by phone and did not receive a response. In August the defendant was served by hand delivery to a front desk receptionist, but still no response.

Entry of default judgment was requested and granted in September. The defendants did not respond by counsel until late October after the plaintiff moved for default judgment.

On appeal, the defendants requested the court vacate the default entry by reason of mistake, negligence by the plaintiff, and denial of a jury trial.

Standard of Review – Essex Test

To determine whether good cause existed to vacate the default judgment, the court applied the Essex test.  The state court concluded Smurfit did not present good cause reverse the lower courts decision.

In Essex, a badly beaten bar customer was left on a stool outside the bar owned by Jaycie, Inc. The insurance company sought a declaratory judgment against the owner after she failed to answer a complaint regarding the insurer’s coverage determination.

The bar owner claimed she believed the suit was apart of an underlying cause of action. The owner’s motion to vacate was denied for failure to present good cause. Essex Ins. Co. v. Jaycie, Inc. 99 P.3d 651 (2004).

First the Montana court reviewed whether the default was willful. Smurfit argued the default was merely a result of mistake because counsel believed outside counsel was handling the claim.

The court stated ignorance was not a defense to answering a complaint as a licensed attorney. Because the attorney was personally designated in a court approved stipulation the argument was not justified.

Second, the court reviewed whether setting aside the default prejudiced the plaintiff. The court disagreed with the defendant’s argument that the plaintiff would not be prejudiced because the delay in the proceedings was slight.

The plaintiff waited four years to be heard, not to mention they lacked income and engaged in extensive negotiations with Smurfit.

If the court granted the defendant’s motion, Smurfit would have avoided their obligation to the plaintiffs and proper service. Additionally, the plaintiff would have lost their opportunity to have their claim evaluated by the court.

Finally, the court declined to address whether the defendant presented a meritorious defense to the plaintiff’s claim. The court only needed to establish a defense was raised. Smurfit alleged negligence caused the plaintiffs injury.

The defendant failed to comply with the agreement entered as an order by the Bankruptcy Court and failed to respond in a timely manner to prevent the entry of default.

This case is Ginn v. Smurfit Stone Container Enterprises, Inc. Case No. DA 14-0098, Supreme Court of the State of Montana

Counsel for the plaintiffs: Milt Datsopoulos, Terance P. Perry, J.R. Casillas, Datsopoulos, MacDonald & Lind P.C. Missoula, Montana

Counsel for the defendants: Alexander Blewett, III, Kurt M. Jackson, Hoyt & Blewett PLLC Great Falls, Montana

Viacom Reaches A $7.2 Million Settlement in Unpaid Wages Suit

Viacom Reaches A $7.2 Million Settlement in Unpaid Wages SuitFormer interns and Viacom Inc. reached a $7.2 million settlement to resolve a labor and wage class action suit involving more than 1,000 interns. Viacom failed to pay wages during their employment.

The motion for preliminary approval of the settlement was filed in the United States District Court for the Southern District of New York.

The suit was initiated by former intern Casey O’jeda in 2013 against Viacom and MTV Networks.

O’jeda worked for Viacom from September 2011 until January 2012, for three days a week, up to eight hours a day. During this time, she updated and rebooted websites, coded, created weekly spreadsheets and customer management.

The plaintiffs contended Viacom failed to pay interns at least minimum wage during their employment in various areas including Information Technology and Human Resources.

Relief was sought under the federal Fair Labor Standards Act and New York, California state labor laws. Specifically, the plaintiff stated, Viacom “engaged in an unlawful scheme to require plaintiffs to provide free labor that undeniably benefited defendants.”

Wage & Labor Requirements

Generally, unpaid internships are legal as long as the intern is receiving educational credit. Additionally, the work performed by the intern must benefit their educational experience.

Legal concerns may arise when the intern does not receive school credit and is producing work for the employer’s benefit. If the work for the intern is the same paid staff would perform, then the intern is more likely considered an employee.

This is one of several recent cases employers faced for failure to pay interns for work which the company benefited.

See Second Circuit to Hear Unpaid Interns’ Wage and Hour Class Action, regarding suits filed against the media company Hearst Corporation and Fox Searchlight. Similarly, the companies hired interns who worked a number of hours with little or no pay.

These cases, also before the Southern District Court will possibly identify the standard for determining whether an individual is an intern or an employee covered by the state and federal wage protection laws.

The settlement terms state each named plaintiff will receive $5,000 each. The class action plaintiffs also requested attorney’s fees and costs.

This case is O’jeda v. Viacom et al., case number 1:13-cv-05658, in the U.S. District Court the for the Southern District of New York.

Counsel for the plaintiffs are Lloyd Ambinder, LaDonna Lusher, and Suzanne Klein of Virginia & Ambinder LLP and Jeffrey Brown, Michael Tompkins, and Daniel Markowitz of Leeds Brown Law PC.

State Courts Invalidate Consumer Arbitration Clauses, and Sidestep SCOTUS Ruling

money greed

The New Jersey Supreme Court reversed, largely by characterizing arbitration as a waiver of a citizen’s right under the New Jersey Constitution to a trial by jury.

Thanks to Liz Kramer for this excellent post.

Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey.

  • Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014).
  • New Jersey grounded its decision on the arbitration agreement’s failure to clarify that the consumer was giving up its right to a court trial. Atalese v. U.S. Legal Servs. Group, __ A.3d __, 2014 WL 4689318 (N.J. Sept. 23, 2014).

What can we say about these two cases and the Missouri case? I can find ways that each of them contravene federal case law, but it is unlikely that SCOTUS will take the time to correct them. However, these cases do point to a real need to clarify the Concepcion decision. If the intent of the Concepcion decision was to tamp down on state courts’ creativity in developing “general state law doctrines” that invalidate arbitration, it is simply not doing its job.

Deceptive cell phone company

Alltel is a consumer class action alleging that a cell phone provider engaged in a deceptive trade practice when it charged early termination fees. The company moved to limit the class to exclude customers with arbitration provisions, and later to compel arbitration with those customers, and the trial court denied those motions. On appeal, the Supreme Court of Arkansas affirmed the lower court’s finding that the arbitration agreement was unenforceable.

Critically, the Alltel arbitration agreement was preceded by this clause

“If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver.”

The court construed that clause as “Alltel clearly reserv[ing] to itself the option of pursuing remedies other than arbitration, without the consequence of waiver. Moreover that reservation and protection was limited solely to Alltel and was not extended to the customer.” Therefore, the court found the arbitration agreement was invalid because it lacked mutuality.

The court also found that its result was not preempted by the FAA, because Arkansas considers “the doctrine of mutuality” when analyzing all contracts. However, the opinion does not appear to cite any case outside the arbitration context to support that statement. (That’s Problem Number One with this decision, ie. preemption and Concepcion. Problem Number Two is that the court ignores the Prima Paint doctrine by looking outside the arbitration agreement to find the lack of mutuality. )

Shady debt company

Atalese is an individual claim by a consumer who contracted with a debt-adjustment company, and then sued for violations of the consumer fraud act, among other claims. The contract stated that “any claim or dispute” related to the agreement “shall be submitted to binding arbitration” and that “any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction.” The company moved to compel arbitration. The trial court granted that motion and the intermediate appellate court affirmed.

The New Jersey Supreme Court reversed, largely by characterizing arbitration as a waiver of a citizen’s right under the New Jersey Constitution to a trial by jury and assuming that “an average member of the public may not know…that arbitration is a substitute for the right to have one’s claim adjudicated in a court of law.”

Given that framing of the issue, the court found the arbitration clause lacked “clear and unambiguous language that the plaintiff is waiving her right to sue or go to court to secure relief,” and therefore was unenforceable. Like the Arkansas court, New Jersey tried to shield itself from Concepcion by positioning its decision as a general application of New Jersey contract law. The opinion has a string cite that continues for half a page, in which all the opinions cited relate to waivers of statutory rights. Notably, though, the court does not address the fact that SCOTUS has not found the Sixth Amendment right to a jury trial an impediment to enforcing arbitration agreements.

Despite Hiding Evidence, Takeda Challenges $6B Actos Verdict

legal news, law news, lawyers, settlements

This article is based on a report from Lawyers and Settlements.

Despite evidence that it concealed cancer risks associated with its diabetes drug Actos, Japanese drug maker Takeda Pharmaceutical Co. Ltd. said it would contest $6 billion in punitive damages imposed against it and Eli Lilly & Co.

A federal jury ordered Takeda and Eli Lilly & Co. to pay a combined $9 billion in punitive damages after finding that the companies hid the risks of cancer in their diabetes drug trial held in the United States.Takeda was ordered to pay $6 billion in punitive damages and Eli Lilly and Co, a co-defendant in the case, was ordered to pay $3 billion in punitive damages and $1.45 in compensatory damages by the jury in Louisiana on April 8.

Actos (pioglitazone hydrochloride) is a member of a class of drugs known as thiazolidinediones, which are linked to liver and cardiovascular issues. Actos side effects include increased risk of congestive heart failure (CHF), increased risk of rare but serious liver problems, an increased risk of fractures, and an increased risk for bladder cancer.

A black box warning exists for Actos and heart failure, however, an Actos whistleblower lawsuit suggests a previously known but downplayed link between Actos and myocardial infarction (Actos heart attack). Actos is used to treat type 2 diabetes.

According to Lilly, 75 percent of the liability was allocated to Takeda and 25 percent to Lilly. Takeda plans to dispute the awards, stating that judgments were entered in its favor in all three previous Actos trials. This was the first federal case to be tried in a consolidated multidistrict litigation comprising more than 2,900 lawsuits. Germany and France suspended use of the drug in 2011 due to concerns of a possible link to cancer.

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. The case is In Re: Actos Products Liability Litigation Case U.S. District Court, Western District Louisiana, No. 6:11-md-2299.