Novartis scores two summary judgments on the eve of two trials.
C.D. Cal. -- United States District Court for the Central District of California
On October 3, 2013, the United States District Court for the Central District of California granted summary judgment for Novartis in Hendrix v. Novartis Pharm. Corp., No. 2:13-cv-02402-MWF-PLA (C.D. Cal. Oct. 3, 2013), dismissing all of plaintiff’s claims. Judge Michael W. Fitzgerald found that there “is no plausible interpretation of the undisputed facts that allows Plaintiff” to avoid summary judgment under California’s two-year statute of limitations for personal injury actions. Order at 9. The court also rejected plaintiff’s arguments that cross-jurisdictional tolling or equitable tolling saved his otherwise untimely claims. Three days earlier, Novartis won summary judgment in a California state court case set for trial on November 18, 2013. Watson v. Gish, et al., No. CGC-10-499237, (San Fran. Super. Ct. Sept. 30, 2013). The court found that plaintiff could not show any injury or that any alleged failure to warn proximately caused her any harm.
In Hendrix, plaintiff Michael Hendrix alleged that he developed osteonecrosis of the jaw (“ONJ”) as a result of his use of the bisphosphonate medication Zometa®. Mr. Hendrix was prescribed Zometa® in 1999 as part of a clinical trial and continued to take Zometa® until his oncologist suspended his treatment after a clinical diagnosis of ONJ related to Zometa® in September 2003. Plaintiff later restarted Zometa®, which he continues to receive to this day.
Novartis argued that plaintiff failed to meet his burden under California’s discovery rule of proving that he did not have inquiry notice of the alleged cause of his injury prior to January 2004, two years before his suit was filed. The court agreed, finding that “Plaintiff has not provided a sufficient basis to dispute that he and [his oral surgeon] discussed their mutual suspicions on September 18, 2003.” Order at 10. The court also rejected plaintiff’s argument that his physicians’ diagnoses were not conclusive because “California law does not require a plaintiff to be certain of the cause of his injury before his cause of action accrues; it merely requires facts sufficient to put a reasonable plaintiff in suspicions that he has been wronged.” Order at 12.
The court then turned to plaintiff’s arguments that his claim was tolled by the September 2005 filing of a class action lawsuit in Tennessee. First, the court found that California has rejected the concept of cross-jurisdictional tolling, meaning a Tennessee class action could not toll the limitations period for a California plaintiff. Order at 16. Second, while equitable tolling is “theoretically” available in certain cases, it would be “extremely rare” for equitable tolling to apply when cross-jurisdictional tolling does not, and “[t]his action is not that extremely rare case.” Order at 20, 21. Personal injury mass tort class actions like the Tennessee suit do not apprise defendants of the substantive claim of each plaintiff. As such NPC could not have been alerted “to the possibility of any individual class member’s claim.” Order at 21. Further, a plaintiff attempting to benefit from equitable tolling “must have actually relied on the use of some other legal mechanism to vindicate his rights.” Order at 22. The Court found that equitable tolling did not apply because plaintiff did not rely on the class action. Indeed, plaintiff filed his claim “a mere four months after the Tennessee Class Action was filed, and the two suits proceeded concurrently for several years.” Order at 22.
This case was part of the ongoing Aredia® and Zometa® multidistrict litigation, In re: Aredia® and Zometa® Prods. Liab. Litig., No. 3:06-MD- 01760 (TJC) (M.D. Tenn.), and had been remanded to the Eastern District of New York and transferred to the Central District of California for further pretrial proceedings and trial. Novartis has won 57 cases on summary judgment and obtained dismissal of over 220 other cases in the Aredia®/Zometa® federal and state consolidated litigations.
In Watson, plaintiff originally alleged ONJ but during discovery admitted that she never had ONJ. She amended her complaint to allege a fear of future ONJ. In its summary judgment motion, Novartis argued that (1) plaintiff failed to state a cognizable claim of injury because she could not show she was more likely than not to develop ONJ in the future, and (2) plaintiff failed to show that any allegedly inadequate warning by Novartis proximately caused her any injury, given the testimony elicited by Novartis by her prescribing physicians that they were fully aware of, and had expressly considered, any alleged risk of ONJ, and that they would make the same prescribing decision for plaintiff today. The court granted Novartis full summary judgment.
There have been thirteen trials out of the consolidated litigation in federal and state courts. NPC has received complete defense verdicts in seven cases: Hill v. Novartis Pharm. Corp., No. 1:06-cv-00939-JSR-SAB (E.D. Cal.); Meng v. Novartis Pharm. Corp., No. MID-L-7670-07-MT (N.J. Super. Ct. Law Div.); Hogan v. Novartis Pharm. Corp., No. 06-Civ-260 (BMC) (E.D.N.Y.); Kyle v. Novartis Pharm. Corp., 1: 06-cv-00035-TBR (W.D. Ky.); Brown v. Novartis Pharm. Corp., No. 7:08-CV-00130-FL (E.D.N.C.); Brodie v. Novartis Pharm. Corp., No. 4:10-cv-138-HEA (E.D. Mo. Feb. 1, 2012), and Bessemer v. Novartis Pharm. Corp., No. MID-L-1835-08-MT (N.J. Super. Ct. Law Div.), aff’d, No. A-2069-10T1, 2012 WL 2120777 (N.J. Super. Ct. App. Div.).