The New Jersey Appellate Division affirmed judgment in favor of Novartis Pharmaceuticals Corporation, rejecting plaintiffs’ appeal of a 2010 defense verdict in the first bellwether trial arising out of the Aredia/Zometa consolidated litigation in New Jersey state court.  Bessemer v. Novartis Pharm. Corp., No. A-2069-10T1, 2012 WL 2120777 (N.J. Super. Ct. App. Div. June 13, 2012).  Oncologists – and even plaintiffs’ experts in this litigation – widely acknowledge that Aredia and Zometa have revolutionized the treatment of the ravaging and painful symptoms of cancer, especially in patients whose cancer has metastasized to their bones.  In Bessemer, the jury returned a complete defense verdict, answering “No” to the question: “Did Novartis fail to provide an adequate warning to Mrs. Bessemer’s prescribing physician concerning the risks of jaw problems from Aredia® and/or Zometa® that Novartis either knew or should have known prior to Mrs. Bessemer discontinuing use of the drug(s)?”

Plaintiffs appealed, arguing that Judge Jessica Mayer erred in her pre-trial ruling that Novartis had no duty to warn health care providers who were in the position to avoid the risk of harm to Mrs. Bessemer, but rather Novartis fully discharged its duty to warn by warning Mrs. Bessemer’s prescribing physician.  Plaintiffs also argued on appeal that Judge Mayer should have held that the limited advertising conducted by Novartis enlarged the Company’s duty to warn beyond the prescriber under the direct-to-consumer (“DTC”) advertising exception to New Jersey’s learned intermediary doctrine discussed by the New Jersey Supreme Court in Perez v. Wyeth Laboratories Inc., 161 N.J. 1, 734 A.2d 1245 (1999).

The three-judge panel of the New Jersey Appellate Division issued a unanimous affirmance in favor of Novartis, citing as support “the well-considered and thorough opinions of Judge Mayer,” which the panel described as “well-supported by the evidence and legal precedent.”  Bessemer, 2012 WL 2120777.  The reasoning adopted by the appellate panel includes Judge Mayer’s April 30, 2010 decision, in which she reasoned that Novartis had no duty to warn non-prescribing dentists or oral surgeons of the risks of osteonecrosis of the jaw (“ONJ”) in patients using Novartis’s cancer drugs Aredia and/or Zometa.  See Mem. of Decision at 21-23. The appellate panel similarly adopted the reasoning of Judge Mayer’s August 20, 2010 decision, in which the trial court granted partial summary judgment to Novartis on plaintiffs’ DTC claims finding that Novartis did not advertise directly to consumers in such a manner that would deprive it of the learned intermediary defense.  See Mem at 15.

Plaintiff Jane Bessemer, a breast cancer patient with bone metastases, alleged that she developed ONJ as a result of her receiving Aredia and Zometa. The case went to trial on plaintiffs’ remaining claims and after only two hours of deliberation, the jury entered a complete defense verdict for Novartis.