Updated 

Las Vegas judge may punish for misconduct in Actos trial


A Las Vegas judge is considering a request to punish lawyers for engaging in misconduct during an ongoing civil trial in her courtroom.

At a lengthy hearing Thursday afternoon, District Judge Kerry Earley heard arguments from attorney David Wall, who represents a woman involved in the case against Japanese drug maker Takeda Pharmaceuticals.

Wall argued that Takeda’s defense team has violated court orders and treated the judge disrespectfully during the trial, which began with jury selection Feb. 10.

“It’s now in the persistent misconduct stage,” said Wall, who asked the judge to impose sanctions.

Wall represents Henderson resident Delores Cipriano, 81, who was diagnosed with bladder cancer in July 2012 after taking the diabetes drug Actos. Takeda makes the prescription drug pioglitazone under the trade name Actos.

Cipriano and another woman, Las Vegas resident Bertha Triana, each filed lawsuits last year in Clark County District Court against Takeda. Triana, 80, was diagnosed with bladder cancer in May 2012 after taking Actos.

Both women allege their cancer was caused by the medication. Their cases were consolidated for trial.

On April 8, Earley said the behavior of defense counsel during the trial “has been absolutely very egregious.”

“It has been very disrespectful, at the least,” the judge said.

Previously, Earley specifically had reprimanded attorney Kelly Evans for pointing his finger at her and attorney D’Lesli Davis for rolling her eyes and telling the judge she “was getting emotional.” Evans and Davis represent Takeda.

The judge said she had put up with the behavior because “it’s never in front of the jury.”

But the jury was present April 11 when an incident occurred during a sidebar conference. The incident prompted Earley to read the following admonishment in court:

“I hereby admonish and instruct the jury to disregard any comments made by Ms. Davis at the sidebar which were overheard by the jury, and to further disregard any gestures made by Ms. Davis at the sidebar which were observed by the jury as such actions were inappropriate. I also caution Ms. Davis to refrain from making any loud comment which may be overheard by the jury at the sidebar and to refrain from making any gestures that may be observed by the jury at the sidebar.”

Wall has argued that Takeda’s lawyers intentionally are engaging in misconduct to cause a mistrial in the case.

“Understand: We are not asking for a mistrial,” he told the judge on Thursday. But Wall also argued that monetary sanctions would not change the behavior of Takeda’s lawyers.

Takeda attorney Joel Henriod argued that most of the possible misconduct occurred early in the trial, when the defense lawyers were in a “learning process.” He also argued that Earley had not issued “typical orders.”

Robert Eglet, another lawyer representing Cipriano, said he plans to seek a multibillion-dollar verdict, which would be the largest in Nevada history.

Earlier this month, a Louisiana jury ordered Takeda to pay $6 billion in punitive damages in another case involving Actos.

Thousands of plaintiffs across the country have filed product liability lawsuits against Takeda. The company is accused of failing to inform consumers and medical professionals about the risk of bladder cancer associated with the use of Actos, which went on sale in the United States in 1999.

In June 2011, the Food and Drug Administration issued a safety announcement stating that use of Actos for more than one year may be associated with an increased risk of bladder cancer.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @CarriGeer.

 

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