Novartis scores two summary judgments on the eve of two trials.



C.D. Cal. -- United States District Court for the Central District of California

Complex Litigation

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.). ‎