Western District of Oklahoma Grants Novartis Summary Judgment in Zometa Case
June 28, 2013
The U.S. District Court for the Western District of Oklahoma granted Novartis Pharmaceuticals Corporation’s motion for summary judgment in Shrum v. Novartis Pharm. Corp., Case No. CIV-12-1057-C (W.D. Okla. June 28, 2013). The plaintiff claimed that she developed osteonecrosis of the jaw (“ONJ”) as a result of her use of bisphosphonate medications Aredia and Zometa, which her oncologists had prescribed to prevent breast cancer-related bone destruction.
The court began its analysis with Novartis’s Daubert motion, which it granted. Judge Robin J. Cauthron found that Dr. James Baker, the treating physician plaintiff offered to opine on specific causation, i.e., whether Aredia and/or Zometa caused plaintiff to develop ONJ, did not satisfy Federal Rule of Evidence 702. Judge Cauthron noted that Dr. Baker testified he was not an expert on ONJ or bisphosphonate drugs and found him lacking sufficient expertise to support causation testimony.
The court also excluded Dr. Baker for the independent reason that he could not reliably identify plaintiff as having Bisphosphonate-Related ONJ (“BRONJ”). Although Dr. Baker purported to apply a differential diagnosis in reaching his conclusions, the court held that he failed to provide any scientific basis for how he ruled out other potential causes of Ms. Shrum’s alleged BRONJ. The court found this failure “[p]articularly insufficient in the Tenth Circuit, which has held that a differential diagnosis is most useful when the party relying on it has offered additional corroborating evidence.” Slip op. at 4. Because the plaintiff lacked evidence to establish that her alleged injury was caused by Aredia and Zometa, the court granted Novartis summary judgment as to all claims. Id. at 5.