Insights & Events

On November 24, 2009, the United State Court of Appeals for the Sixth Circuit affirmed the grant of summary judgment in favor of Firm client Novartis Pharmaceuticals Corporation (“NPC”) in five cases brought by plaintiffs who reside outside the United States based on the plaintiffs’ failure to rebut evidence that NPC did not manufacture the drugs they were treated with.  The Court also affirmed the denial of plaintiffs’ motion for additional discovery.  In re: Aredia and Zometa Products Liability Litigation, Nos. 09-5072, 09-5073, 09-5074, 09-5075, and 09-5076 (6th Cir. November 24, 2009).

The Court of Appeals held that the “undisputed record here is that NPC did not manufacture or supply the subject drugs to Plaintiffs, which would seem to doom their claims.”  The Court rejected plaintiffs argument that summary judgment should have been denied because NPC could be liable based on allegations that it tested and labeled the drugs distributed in other countries.  The Court also ruled that plaintiffs had waived that argument because it was not raised in the briefing below.  The Court also affirmed the rejection of plaintiffs’ motion to take additional discovery under Federal Rule of Civil Procedure 56(f), noting that nothing precluded plaintiffs from taking the discovery that they sought through their Rule 56(f) motion earlier in the proceedings.  The Court observed that the plaintiffs had never explained why they did not conduct a pre-suit investigation into the identity of the correct defendant, “as Rule 11 would seem to require.”

The five cases had been part of the In re Aredia and Zometa Products Liability Litigation, a multidistrict litigation centralized in the United States District Court for the Middle District of Tennessee.  The MDL was assigned to Chief Judge Campbell by the Judicial Panel on Multidistrict Litigation on April 18, 2006.  Hollingsworth LLP is counsel for Novartis Pharmaceuticals Corporation.