The stunning $9 billion verdict in Louisiana this past April against Takeda and Eli Lilly for their manufacture and sale of Actos as a medication (Actos is a thiazolidinedione or TZD drug) for the treatment of diabetes has been well reported. Many plaintiffs firms have sought to capitalize on this result by advertising their services to prospective plaintiffs diagnosed with bladder cancer. Published studies and the FDA have posited that prolonged use of Actos increases the risk of contracting this cancer. TV ads and proclamations of expertise abound on websites that are linked to “Actos” as a search term.
The lure to the plaintiffs bar must be compelling as the pool of prospective plaintiffs is large. The American Cancer Society has reported that as many as 73,000 cases of bladder cancer were diagnosed in the United States in 2012. The published five-year survival rate for bladder cancer, while good if the diagnosis is made early, is very dire if the disease is found late.
The economics of cancer research, and not just the litigation that follows the introduction of new therapies, is impressive. An article in the June 3 San Francisco Chronicle describes the efforts of Genentech to pursue a new therapy for bladder cancer. A new immuno-oncology treatment has shown promise and the article in the business section of the paper includes a prediction that cancer immunotherapies will be a $35 billion industry worldwide “in less than a decade.”
In the print version of this same paper, on page A10 in the opinion section, there is a large ad titled “Actos and Bladder Cancer” placed by Weitz & Luxenberg P.C. The ad proclaims, “The manufacturers and marketers of Actos have recently been found liable for Actos causing bladder cancer.” It goes on to urge Actos users, “Even if you have not developed bladder cancer, it is in your best interest to contact us (through our website or phone) in order to receive helpful information updates in the future.” While Weitz & Luxenberg are perhaps best known as asbestos litigation attorneys, it notes in the ad, “Weitz & Luxenberg are NATIONWIDE LEADERS in the Actos and Bladder Cancer field.”
Clearly, high stakes are involved in the development of cancer therapies, and just as clearly high stakes are involved in any potential subsequent litigation. But if the entire worldwide market for immunotherapies over the next 10 years is predicted to be approximately $35 billion, one must wonder whether the prospect of facing a civil case verdict of as much as $9 billion might impact the decisions of companies such as Genentech in pursuing new therapies and ultimately how to price such therapies.