In an unreported decision of the Court of Special Appeals of Maryland dated December 4, 2014, the Court upheld a defense verdict in favor of the manufacturer of Actos, a FDA-approved prescription medication used to treat type 2 diabetes, in a lawsuit filed on behalf of the estate of a man who died in January 2012 from bladder cancer that the plaintiffs alleged was caused by his use of Actos (the man had been prescribed Actos from January 2007 until July 2011).
The Maryland Actos lawsuit alleged that the defendants, Takeda Pharmaceuticals America, Inc., Takeda Pharmaceuticals U.S.A., Inc., and Takeda Pharmaceutical Company Ltd. (“Takeda”), negligently failed to warn the medical community about the bladder cancer risk associated with Actos.
The plaintiffs alleged that Takeda was liable under three legal theories: (1) strict liability failure to warn; (2) breach of implied warranty; and (3) negligent failure to warn. The Maryland jury found in favor of Takeda on the first and second theories and determined that Takeda was negligent as to the third, but the jury also determined that the man was contributory negligent and therefore the trial court entered judgment for Takeda.
The plaintiffs filed an appeal, alleging that the jury’s verdict was inconsistent where the jury found all of the elements of negligent failure to warn, which include all of the elements of strict liability failure to warn, yet the jury found defendants liable for the negligence claim but not for the strict liability claim, determining that Takeda did not fail to adequately warn the man’s physician of the risk of bladder cancer associated with Actos about which Takeda knew or should have known, which made the verdict irreconcilably inconsistent.
The issue before the Court of Special Appeals was whether the jury’s verdict was an irreconcilably inconsistent verdict because such a verdict is not permitted to stand in Maryland. In making that determination, the court must assume that the jury was rational and consistent rather than irrational or inconsistent, and therefore the court should seek to view the case in a manner that would make the jury’s findings consistent.
The Court of Special Appeals agreed with the trial court’s determination of the issue: although Maryland courts recognize the near identical nature of failure to warn claims rooted in strict liability and in negligence (each shares the elements of duty, breach of duty, causation, and damages), in strict liability the focus is on the product whereas in negligence the focus is on the manufacturer’s conduct.
Under a negligence theory, the issue is whether Takeda exercised due care in formulating and updating the warning while under a strict liability theory, the issue is whether the lack of a proper warning made the product unreasonably dangerous. In this case, a reasonable jury could have concluded that Actos was not unreasonably dangerous but that Takeda was negligent in the size or the location of its warning, and contributory negligence is a defense to negligent failure to warn but not a defense to strict liability failure to warn.
The Court of Special Appeals stated, “We are persuaded by the circuit court’s reasoning and conclude that the jury’s verdicts were not irreconcilably inconsistent.”
Camhong An, et al. v. Takeda Pharmaceuticals America, Inc., et al., No. 2112, September Term 2013.
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