Novartis Rebuts Plaintiff’s Changing Failure-to-Warn Theories, Obtaining Summary Judgment on Eve of Trial

November 16, 2012

Judge Roger Titus of the U.S. District Court for the District of Maryland granted summary judgment in favor of Novartis Pharmaceuticals Corporation in a case alleging that plaintiff’s treatment with Novartis’s drugs Aredia and Zometa caused osteonecrosis of the jaw (“ONJ”).  Zimmerman v. Novartis Pharm. Corp., 889 F. Supp. 2d 757 (D. Md. 2012).  Trial was to begin on November 6 but after a summary judgment hearing on November 1, Judge Titus suspended the trial date pending his ruling.

Zimmerman is one of a number of cases that was remanded out of the In re Aredia and Zometa multidistrict litigation that is currently pending before the United States District Court for the Middle District of Tennessee.  Zimmerman is the third summary judgment to be granted to Novartis on the brink of trial due to a failure of plaintiff’s proximate causation evidence; the first two were Eberhart (N.D. Ga. Oct. 31, 2011) and Ingram (W.D. Okla. July 8, 2012).  Novartis has now disposed of more than forty cases by summary judgment in the Aredia®/Zometa® litigation, and more than 100 on motions to dismiss or voluntary dismissals without settlement.

In Zimmerman, plaintiff, responding to motions in limine, abandoned her prior proximate cause theory (that a “drug holiday”—a period of abstention from Aredia—would have prevented the injury).  She adopted two new ones, both based on ways that a tooth extraction, which allegedly triggered the ONJ, could have been avoided.  Novartis then renewed its motion for summary judgment, attaching newly obtained declarations from two treating dental providers establishing that the tooth extraction could not have been avoided in either of the two ways posited by plaintiff.  Plaintiff responded by asking for more discovery under Rule 56(d).  Following the summary judgment hearing on November 1, she obtained a declaration from her case-specific expert, Richard Kraut, contradicting a portion of one of the declarations, and submitted it to the court, claiming that it discharged her burden of proof and defeated Novartis’s motion for summary judgment.

In his order, Judge Titus denied the request for additional discovery under Rule 56(d) because plaintiff failed to meet the elements required for such relief, and in particular failed to show that she could not have obtained the discovery that she sought through ordinary means.  Judge Titus disregarded Dr. Kraut’s affidavit as a sham, because it was self-serving and contradicted his own deposition testimony.  He noted that the Kraut affidavit would not have sufficed to defeat summary judgment in any event because it was the treating doctor, not Dr. Kraut, who made the decision to extract the tooth in question, and Dr. Kraut’s opinion on that decision was irrelevant.  Because plaintiff could not meet her burden of proof regarding her two new proximate causation theories, Judge Titus granted summary judgment to Novartis on all claims.