Ninth Circuit affirms summary judgment in favor of Novartis.

02/20/14

WA

9th Cir. -- United States Court of Appeals for the Ninth Circuit

Complex Litigation

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On February 20, 2014, the United States Court of Appeals for the Ninth Circuit affirmed the District Court’s award of summary judgment in favor of Novartis Pharmaceuticals Corporation (“Novartis”) in the pharmaceutical products liability case, Luttrell v. Novartis Pharm. Corp., No. 12-35893, 555 F. App'x 710 (9th Cir. Feb. 20, 2014).  The Ninth Circuit held that plaintiff failed to prove proximate causation because there was no evidence that the prescribing oncologist, Dr. Albert Brady, would have taken a different course of action even if allegedly “better” warnings had been issued. 

The appeal arose out of the Aredia®/Zometa® multidistrict litigation (“MDL”), in a case that was remanded to the District Court for the Eastern District of Washington.  Plaintiff Duane E. Luttrell alleged that he developed osteonecrosis of the jaw (“ONJ”) as a result of his use of Aredia® and Zometa®, FDA-approved medications prescribed to prevent or significantly delay the deep bony pain, pathologic bone fractures, and spinal cord collapse that are complications of plaintiff’s multiple myeloma.  In October 2012, Judge Thomas O. Rice rendered a forty-five page opinion granting Novartis’s motion for summary judgment on the grounds that (1) the evidence showed Dr. Brady would have prescribed Aredia® and Zometa® even knowing of the risk of the ONJ – indeed, Dr. Brady prescribed Aredia® to plaintiff after plaintiff developed ONJ and after he filed the instant lawsuit – so the injury would not have been averted even with a different warning, and (2) plaintiff had not provided reliable expert testimony to prove that Aredia® and Zometa® caused his jaw condition as required under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, and thus there was insufficient evidence to establish specific causation. 

Plaintiff appealed, arguing the existence of sufficient evidence to create a triable issue as to proximate cause.   Plaintiff also argued that Judge Rice erred in excluding the specific causation opinions of plaintiff’s retained expert as unreliable under Daubert.

The three-judge panel issued a unanimous affirmance in favor of Novartis.  The court held that “the district court properly granted summary judgment to Novartis because Luttrell cannot prove proximate cause” and “the prescribing physician resumed Luttrell’s bisphosphonate treatment after his development of ONJ and after the filing of this lawsuit.”  The court further stated that Dr. Brady understood the risk of ONJ and “in his medical opinion the benefits of the treatment for the patient outweighed those risks.”  Having ruled for Novartis on the warnings causation issue, the panel did not address the other bases for affirmance of the district court’s decision.

This case was argued before the Ninth Circuit in tandem with Messick v. Novartis Pharm. Corp., No. 13-15433, although briefing was not consolidated.  Messick arose out of the same Aredia®/Zometa® MDL as the Luttrell case.  On February 15, 2013, the United States District Court for the Northern District of California granted Novartis’s Daubert motion in Messick, thus excluding plaintiff’s expert witnesses, and then granted summary judgment in favor of Novartis, 924 F. Supp. 2d 1099 (N.D. Cal. Feb. 15, 2013).  Plaintiff appealed, arguing the district court erred by ruling inadmissible the specific causation opinions of its non-treating expert witness.  Messick remains pending before the Ninth Circuit.

Novartis has obtained dismissal or summary judgment in over 250 other cases originally in the Aredia®/Zometa® MDL.  Novartis has also received complete defense verdicts in seven trials, and has received twenty-four appellate judgments in its favor in cases originally part of the consolidated litigation.

Novartis is represented in Luttrell by Firm partner Frank Leone.

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