S.D. Georgia Grants Novartis Summary Judgment in Zometa Case
May 15, 2013
The U.S. District Court for the Southern District of Georgia granted Novartis Pharmaceuticals Corporation’s motion for summary judgment in Wheeler v. Novartis Pharm. Corp., Case No. 1:11-cv-00211 (S.D. Ga. May 15, 2013).
The plaintiff claimed that his wife developed osteonecrosis of the jaw (“ONJ”) as a result of her use of bisphosphonate medication Zometa®, which her oncologist had prescribed to prevent cancer-related bone destruction. The court held that plaintiff’s claims based upon Mrs. Wheeler’s injury were barred by Georgia’s statute of limitations. Slip Op. at 12. Based upon the deposition testimony of her treating physicians, it was clear that “Mrs. Wheeler knew or should have known the cause of her ONJ on or before October 8, 2009 at the latest,” but plaintiff failed to file suit until December 28, 2011, which was over two years later. Id.
Mr. Wheeler’s loss of consortium claim had a longer limitations period and was not time-barred. Slip Op. at 13. However, the court granted summary judgment on this claim as well, because all of plaintiff’s underlying claims failed on the merits. There was “no probative evidence” to establish causation, slip Op. at 14-15, and the learned intermediary doctrine barred the failure-to-warn claim because Mrs. Wheeler’s prescribing oncologist “testified that he was aware of the risks associated with Zometa at the time he prescribed it to Mrs. Wheeler, that such risks were well known in the medical community, and, most significantly, that he continues to prescribe Zometa in the same manner today as he did for Mrs. Wheeler,” slip Op. at 16-18. The court also dismissed warranty and negligent manufacture claims.