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NJ court grants summary judgment on direct-to-consumer advertising claims before trial in Zometa® litigation.

news | September 1, 2010

On August 20, 2010, the first case set for trial in the In re Zometa®/Aredia® Litigation in Middlesex County, NJ, Judge Jessica Mayer granted summary judgment on plaintiffs’ direct-to-consumer (“DTC”) advertising claims against Novartis Pharmaceuticals Corporation (“NPC”) on the grounds that plaintiffs’ claims were based, in part, on improper conjecture and innuendo and that the evidence presented failed to meet plaintiffs’ burden.  This summary judgment ruling follows the Court’s April 30, 2010 grant of summary judgment as to plaintiffs’ design defect, breach of implied warranty, and punitive damages claims.  As part of that earlier ruling, the court allowed additional discovery on plaintiffs’ failure-to-warn claim under the theory that DTC advertising is an exception to the learned intermediary doctrine.

Plaintiff Jane Bessemer had testified originally that she never saw any advertisements for the drugs at issue, Aredia® and Zometa®.  When faced with NPC’s initial summary judgment motion, Ms. Bessemer revised her testimony and asserted that she saw in a magazine for cancer patients advertising for Zometa® and articles about Aredia® and Zometa® that conveyed an express warranty.  According to plaintiffs’ theory, NPC breached that warranty when Aredia® or Zometa® caused Ms. Bessemer’s osteonecrosis of the jaw.  Plaintiffs also argued that such mass marketing to consumers abrogated NPC’s learned intermediary defense under a DTC exception adopted by the New Jersey Supreme Court in Perez v. Wyeth Lab., 161 N.J. 1 (1999).

The court found that Ms. Bessemer did not see any advertisement or read any articles on Aredia before or while she took that drug.  Ms. Bessemer claimed to have seen the advertisement for Zometa® for the first time almost two years after she started taking Zometa®.  The court found that Ms. Bessemer did not rely on the Zometa® advertisements as the basis for continuing Zometa®.  The court ruled that the Zometa® advertisement that Ms. Bessemer claimed to saw – a “reminder” advertisement containing only the product name, generic drug name, a logo, a website address, and the words, “Ask your doctor if ZOMETA® is right for you,” could not be the basis of an express warranty because it made no express assertion of fact or promise and contained no description of the drug.  The court also ruled that none of the articles in the magazine was reviewed, written, edited, or commissioned by NPC.  Therefore, regardless of whether the articles made any affirmations of fact or promise, or other descriptions of the drug, the statements in the articles were not “made by the seller to the buyer,” as required under New Jersey law.

The court held that NPC was entitled to the learned intermediary defense against plaintiffs’ failure-to-warn claims.

The court also ruled on NPC’s motion in limine to exclude at trial evidence and testimony related to DTC advertising, holding that the plaintiffs are precluded from mentioning or referring to advertisements for Aredia® at trial.  Before offering any testimony or mention of Zometa® advertisements, the Court will require a proffer from plaintiffs.  Plaintiffs are precluded from implying that NPC inappropriately influenced articles published in the magazine that Ms. Bessemer saw.

A Motion to Exclude Testimony of Plaintiffs’ Expert Dr. Suzanne Parisian on the Issue of Direct-to Consumer Advertising was deemed moot in light of the Court’s dismissal of plaintiffs’ breach of the express warranty and DTC failure-to-warn claims.