New Jersey mass tort judge excludes plaintiffs’ key expert and grants Novartis summary judgment in bellwether trial case.
N.J. Super. Ct. -- New Jersey Superior Court
Novartis Pharmaceuticals Corporation, achieved a victory on June 6, 2014, when Judge Jessica Mayer granted Novartis’s motions to exclude a plaintiff’s case-specific expert and for summary judgment in one of four cases selected for potential bellwether trial this Fall. Though other courts have allowed the testimony of Dr. TalibNajjar, the New Jersey court held that he plainly failed to perform a proper differential diagnosis and his opinion was an inadmissible unsupported “net opinion.” Barwell v. Novartis Pharm. Corp., No. MID-L-9866-07-MT (N.J. Super. Ct. Jun. 6, 2014). Novartis previously won defense verdicts in the only cases to reach trial in New Jersey to date, Bessemer v. Novartis Pharm. Corp., No. MID-L-1835-08-MT (N.J. Super. Ct. 2010) and Meng v. Novartis Pharm. Corp., No. MID-L-7670-07-MT (N.J. Super. Ct. Law Div. May 15, 2013).
Barbara Barwell, individually and as executrix of the Estate of George Barwell, alleged in a lawsuit filed in New Jersey that Novartis’s drug Zometa® caused Mr. Barwell to develop osteonecrosis of the jaw (“ONJ”). But as part of Mr. Barwell’s treatment for lung cancer, he was also treated with the drug Avastin®, which Judge Mayer found to be “a known cause of ONJ,” that renders a differential diagnosis “incomplete and flawed” if it is not considered. Id. at 4-5. Judge Mayer applied New Jersey Rule of Evidence 702, which requires “sufficiently reliable” expert testimony, as liberally interpreted under Kemp ex. Rel. Wright v. State, 174 N.J. 412 (2002) and its progeny. Judge Meyer found that the expert “utterly failed to provide a ‘reasonable explanation’ for why he concluded that Zometa® ‘was a substantial factor in bringing about’ Mr. Barwell’s alleged ONJ.” Barwell, at 9 (quoting Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp.2d 584, 609 (D.N.J. 2002). Judge Meyer agreed with Novartis that Dr. Najjar failed to “rule in” and “rule out” Avastin®. Id. Noting the nearly identical reports the expert had offered in other cases, Judge Meyer also agreed with Novartis that the expert’s opinion that Zometa® caused the plaintiff’s alleged ONJ was a “net opinion” because it was based on a mere unsupported conclusion. The court also found that the expert “failed to reach a conclusion with the requisite medical certainty or medical probability.” Barwell, at 11. Left without a case-specific expert, Judge Meyer found that “no reasonable jury could find that any alleged failure to warn was a proximate cause of Mr. Barwell’s injuries.” Id. at 17. The court then granted Novartis’s summary judgment motion and dismissed the case with prejudice.
The Barwell case was scheduled for possible trial in September 2014 and was on an expedited litigation schedule along with two other “bellwether” cases. A fourth bellwether case was voluntarily dismissed with prejudice by the plaintiff. The Barwell victory represents the latest win in a string of Aredia®/Zometa® cases. Earlier this year, Novartis won two jury trials in federal courts in Florida and North Carolina.