Ninth Circuit Affirms Summary Judgment for Novartis

February 20, 2014

The Ninth Circuit affirmed the District Court’s award of summary judgment in favor of Novartis Pharmaceuticals Corporation (“Novartis”) in the pharmaceutical products liability case, Luttrell v. Novartis Pharm. Corp., No. 12-35893, 555 F. App’x 710 (9th Cir. Feb. 20, 2014).  The court held that plaintiff failed to prove proximate causation because there was no evidence that the prescribing oncologist, Dr. Albert Brady, would have taken a different course of action even if allegedly “better” warnings had been issued.

The appeal arose out of the Aredia/Zometa multidistrict litigation (“MDL”), in a case that was remanded to the Eastern District of Washington. Plaintiff Duane E. Luttrell alleged that he developed osteonecrosis of the jaw (“ONJ”) as a result of his use of Aredia and Zometa, FDA-approved medications prescribed to prevent or significantly delay the deep bony pain, pathologic bone fractures, and spinal cord collapse that are complications of plaintiff’s multiple myeloma.  In October 2012, Judge Thomas O. Rice rendered an opinion granting Novartis’s motion for summary judgment on the grounds that (1) the evidence showed Dr. Brady would have prescribed Aredia and Zometa even knowing of the risk of the ONJ – indeed, Dr. Brady prescribed Aredia to plaintiff after plaintiff developed ONJ and after he filed the instant lawsuit – so the injury would not have been averted even with a different warning, and (2) plaintiff had not provided reliable expert testimony to prove that Aredia and Zometa caused his jaw condition as required under Daubert, and thus there was insufficient evidence to establish specific causation.

Plaintiff appealed, arguing the existence of sufficient evidence to create a triable issue as to proximate cause. Plaintiff also argued that Judge Rice erred in excluding the specific causation opinions of plaintiff’s retained expert as unreliable under Daubert.

The three-judge panel issued a unanimous affirmance in favor of Novartis. The court held that “the district court properly granted summary judgment to Novartis because Luttrell cannot prove proximate cause” and “the prescribing physician resumed Luttrell’s bisphosphonate treatment after his development of ONJ and after the filing of this lawsuit.”  The court further stated that Dr. Brady understood the risk of ONJ and “in his medical opinion the benefits of the treatment for the patient outweighed those risks.”  Having ruled for Novartis on the warnings causation issue, the panel did not address the other bases for affirmance of the district court’s decision.