Louisiana Federal Court Grants Summary Judgment to Novartis After Excluding Plaintiff’s Expert Witnesses

June 14, 2013

The U.S. District Court for the Western District of Louisiana granted Novartis Pharmaceuticals Corporation’s Daubert motion and so excluded plaintiff’s causation expert witnesses and then granted summary judgment in favor of Novartis in Perkins v. Novartis Pharm. Corp., Civ. Action No. 12-662 (W.D. La. June 14, 2013).

In Perkins, plaintiff Arlene Perkins alleged that she developed osteonecrosis of the jaw (“ONJ”) as a result of her use of the bisphosphonate medication Zometa, which her oncologist had prescribed in connection with her breast cancer.  Ms. Perkins received Zometa every three months from November 2003 to February 2005.  Ms. Perkins claimed that following a necessary tooth extraction in March 2005, she developed ONJ.  She was treated in May 2005 and her jaw healed and did not require further surgical treatment.

Novartis filed Daubert motions and a summary judgment motion as part of the MDL, and the motions were provided to U.S. District Court Judge James T. Trimble, Jr.  The court began its analysis with Novartis’s Daubert motion as to plaintiff’s specific causation experts, which it granted.  Judge Trimble determined that oral surgeon Robert Marx would not be permitted to testify that Zometa caused Ms. Perkins’s alleged injury.  The court found that Dr. Marx did not use a reliable methodology to exclude other causes of Ms. Perkins’s jaw condition.  Specifically, the court concluded, inter alia, that Dr. Marx’s claim that he based his opinion on his experience “is classic ipse dixit and will be totally disregarded by the court” and that Dr. Marx “was grossly in error” as to other potential causes of Ms. Perkins’s condition.  Slip. op. at 7-8.  The court also concluded that Dr. Marx’s recitation of the facts concerning the treatment of Ms. Perkins’s condition was not supported by the record and displayed “an obvious lack of objectivity required of an expert witness in quest of the truth in a court of law.”  Id. at 8-9.  The court finally concluded that Ms. Perkins did not meet Dr. Marx’s own criteria for ONJ.  The court further rejected plaintiff’s effort to use a treating physician’s testimony as expert opinion on specific causation.

After excluding plaintiff’s case-specific causation experts, Judge Trimble concluded that “[w]ithout admissible evidence demonstrating that plaintiff suffered from [ONJ], plaintiff is unable to meet her burden of proof under the LPLA [Louisiana Products Liability Act], since she will not be able to show that her damage was proximately caused by a characteristic of the product.”  Id. at 14.  Judge Trimble then granted summary judgment in light of the “glaring failure of plaintiff’s evidence with respect to her prima facie case under the LPLA.”  Id.