ALERT! First federal Actos Trial, in progress NOW. A report from the trenches… by AW attorney Vance Andrus.

Actos is a drug prescribed to people who have Type II Diabetes to assist in the control of their blood sugar. Unfortunately, Actos has been linked to an increase in bladder cancer, and it is actually a “cancer promoter,” which means it increases the user’s chances of getting bladder cancer. Over three thousand lawsuits have been filed in State and Federal Courts across the country and the vast majority of those cases have been consolidated in a Multi District Litigation (MDL) proceeding for all pretrial proceedings before the Honorable Rebecca Doherty in the Federal Court for the Western District of Louisiana.

Judge Doherty has appointed a Plaintiffs’ Steering Committee, or

PSC, to lead the litigation for the injured against the manufacturers, and I am honored and privileged to have been appointed to that Committee.

Over the past two years our PSC has done an enormous amount of work to prepare these cases for trial. The PSC has obtained and reviewed over 30 million pages of documents from Takeda and Ely Lilly, the Defendants, and we have taken over 200 depositions and prepared over a dozen experts for trial. Our firm, Andrus Wagstaff has assisted in that project, amongst other things, by heading up the Third Party discovery subpoenas. AW attorney Sean McCrary did an excellent job spearheading that effort, which eventually lead to an adverse spoliation ruling against the Defendants. Aaron Embrey, AW’s senior paralegal, oversaw and conducted reviews of massive amounts of discovery from the Defendants and I attended and/or took several of the depositions.

The PSC trial team is now engaged in the first “bellwether” trial. What’s that? Well, there’s no way one court, or even several courts, could try 3000 cases, so the MDL Court usually selects one or more individual cases for trial to act a “bellwethers” to instruct the parties as to the strengths and weaknesses of these type of cases. Oh, and many of her rulings on pretrial matters and during trial will apply to all cases in the MDL.

Trying a bellwether case does not mean that all of the cases will resolve, or even that the “end is near,” but it usually does mean that we have reached the “end of the beginning,” for better or worse. Now the good news. We are in week six of what may be a ten-week trial and I’ve just returned from the trial to report that it is going great. Our lead trial counsel, Mark Lanier from Houston, is doing a remarkable job. He has the full support and assistance of over a dozen first team trial lawyers including the national co-Lead Counsel Richard Arsenault and Paul Pennock, as well as Liaison Counsel Pat Morrow and PSC members including Neil Overholtz, Nick Drakulich, Jerry Parker, Stephanie O’Conner and others too numerous to name.

Will we win? Maybe? Probably? But juries, especially those which require unanimous verdicts, can be fickle. Are we “busting ’em up?” You betcha. These Defendants are in the fight of their lives and regardless of the outcome of this trial are now realizing that this PSC is a relentless, well- oiled machine, determined to see this fight to the end.

More later.

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