U.S. District Court for the Western District of Oklahoma grants summary judgment in favor of Novartis Pharmaceuticals Corporation.

07/18/12

OK

W.D. Okla. -- United States District Court for the Western District of Oklahoma

Complex Litigation

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On July 18, 2012, Judge Tim Leonard of the U.S. District Court for the Western District of Oklahoma 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”).  Ingram v. Novartis Pharm. Corp., 888 F. Supp. 2d 1241 (W.D. Okla. 2012).  The order disposes of the case three and a half weeks before trial was to commence (August 14).  Ingram is one of a number of cases that were remanded out of the multidistrict litigation captioned In re Aredia and Zometa Pharmaceutical Products Liability Litigation that is currently pending before the United States District Court for the Middle District of Tennessee.  There have been six trials, to date, in cases from state or federal consolidated litigation regarding Aredia® and Zometa®.  Novartis obtained a favorable jury verdict in four of those actions:  Hogan v. Novartis Pharm. Corp., 1:06-CV-00260 (E.D.N.Y. May 26, 2011), Bessemer v. Novartis Pharm. Corp., Docket No. MID-L-1835-08-MT (N.J. Middlesex County Ct. Oct. 6, 2010), Kyle v. Novartis Pharm. Corp., 1:06-CV-00035 (W.D. Ky. Jan. 31, 2012), and Brodie v. Novartis Pharm. Corp., 4:10-CV-138 (E.D. Mo. Feb. 1, 2012).  In a fifth case, Baldwin (Winter), the jury rebuffed plaintiff’s request for more than $7 million in punitive damages, awarding only $225,000 in compensatory damages and no punitives.  Baldwin v. Novartis Pharm. Corp., 2:06-CV-4049-MJW (W.D. Mo. Mar. 6, 2012).

Judge Leonard’s order disposed of all claims due to a failure of plaintiff’s evidence on proximate causation. The court affirmed that a pharmaceutical manufacturer’s duty to warn in Oklahoma runs only to the prescribing physician.  Since that doctor had testified in his deposition that he would still have prescribed Aredia® in 1999 had he known of the risks of ONJ, Oklahoma’s heeding presumption was rebutted and the burden of proof “shift[ed] rather heavily back upon” the plaintiff to prove that a different warning would have prevented Mr. Ingram’s injury.  Although the plaintiff had tried to discharge this burden in part by pointing to a tooth extraction done after the initial prescription of Aredia® and to changes in Dr. Hussein’s prescribing practices, the Court held that all of those were irrelevant to Mr. Ingram developing ONJ, holding that “the appropriate date for considering NPC’s duty to warn is January of 1999, when Mr. Ingram was prescribed Aredia® by Dr. Hussein.”

Judge Leonard also granted summary judgment on plaintiff’s wrongful death claim because she had failed to support it with any expert testimony.  Her causation theory for that claim was a chain of inference constructed by counsel and not endorsed by any witness in the record before the Court.

The order disposing of the case on proximate causation echoes the similar order by the U.S. District Court for the Northern District of Georgia in October of 2011, in which that court granted summary judgment due to plaintiff’s failure to establish that any warning would have made a difference to the plaintiff’s injury. Eberhart v. Novartis Pharm. Corp., 867 F. Supp. 2d 1241, 2011 WL 5289372 (N.D. Ga. Oct. 31, 2011).

Novartis is represented in this matter by Firm partners William J. Cople III and Kirby T. Griffis.

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