Novartis wins summary judgment in Rhode Island federal Aredia® case.

12/19/12

RI

D.R.I. -- United States District Court for the District of Rhode Island

Complex Litigation

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On December 19, 2012, Chief Judge Mary Lisi of the U.S. District Court for the District of Rhode Island adopted Magistrate Judge Lincoln Almond’s recommendation, issued in August 2012, and entered judgment in favor of Novartis in Patterson v. Novartis Pharm. Corp., No. 1:11-402-ML-LDA (D.R.I. Dec. 19, 2012).  Plaintiffs Wayne and M. Margaret Patterson first brought suit against Novartis in March 2009 alleging that Mrs. Patterson developed osteonecrosis of the jaw as a result of her use of the Novartis drug Aredia® “and/or” generic pamidronate.  Novartis moved to dismiss the complaint for failure to state a claim under Iqbal andTwombly, noting that plaintiffs had not even alleged that Mrs. Patterson used a Novartis product.  Chief Judge Todd Campbell of the M.D. Tenn. agreed with Novartis, dismissed the complaint, and denied plaintiff’s subsequent motion for reconsideration.  Plaintiffs took the case up to the Sixth Circuit, which affirmed the dismissal.

Plaintiffs re-filed the action in the District of Rhode Island in September 2011.  Novartis moved for summary judgment, arguing that the action could not be re-filed because (1) plaintiffs could not avail themselves of the Massachusetts tolling statute because the prior dismissal was an adjudication on the merits, (2) Massachusetts would not recognize cross-jurisdictional class action tolling, and (3) plaintiffs were not entitled to equitable tolling.  The Magistrate recommended that summary judgment be granted for these reasons and plaintiffs objected.  After entertaining oral argument on plaintiffs' objections, Judge Lisi adopted the Magistrate Judge’s ruling on all three grounds in a thirteen-page opinion. 

The Court found that under both First and Sixth Circuit law, the first judgment against the Pattersons – anIqbal/Twombly dismissal – was an adjudication on the merits that could not be saved by the Massachusetts tolling statute.  Slip op. at 5-6.  As to cross-jurisdictional tolling, Judge Lisi declined to “embark into an unexplored frontier” and presume that the Massachusetts Supreme Judicial Court would adopt the controversial doctrine .  Id. at 10.  In so doing, the court recognized that courts should “exercise considerable caution” when considering an issue of first impression, and that plaintiffs – who are “masters of the forum” – should not file in federal court where they seek to assert novel state-law theories.  Id. at 9-10.  The court also rejected plaintiffs' plea for application of the doctrine of equitable tolling, holding that this case – where the specter of Rule 11 was raised in the first dismissal – is “a classic example of a party failing to exercise due diligence in preserving his or her legal rights.”  Id. at 13.

In addition to Patterson, Novartis has also recently won summary judgment in Zimmerman v. Novartis Pharm. Corp., No. 08-cv-2089, 2012 WL 5816873 (D. Md. Nov. 16, 2012); Harvey v. Novartis Pharm. Corp., No. 2:06-cv-1140-VEH (N.D. Ala. Oct. 4, 2012); Luttrell v. Novartis Pharm. Corp., No. 2:07-cv-03015-TOR (E.D. Wash. Oct. 2, 2012); Conklin v. Novartis Pharm. Corp., No. 9:11-cv-00178-RC (E.D. Tex. Sept. 19, 2012); Ingram v. Novartis Pharm. Corp., __ F. Supp. 2d __, 2012 WL 2922716 (W.D. Okla. July 18, 2012); Parmentier v. Novartis Pharm. Corp., No. 1:12-CV-00045 SNLJ, 2012 WL 2324502 (E.D. Mo. June 19, 2012); Simard v. Novartis Pharm. Corp., 3:06-MD-01760 ( M.D. Tenn. June 5, 2012); Irby v. Novartis Pharm. Corp., No. MID-L-1815-08 (N.J. Super. Ct. Mar. 16, 2012); McDaniel v. Novartis Pharm. Corp., No. 2:08-cv-02088, 2012 WL 32608 (W.D. Ark. Jan. 6, 2012); and Eberhart  v. Novartis Pharm. Corp., No. 1:08-cv-2542-WSD, 2011 WL 5289372 (N.D. Ga. Oct. 31, 2011). 

Novartis won the first bellwether trial in the New Jersey consolidated litigation, Bessemer v. Novartis Pharm. Corp., No. MID-L-1835-08 (N.J. Super. Ct.) (affirmed on appeal) (cert. denied).  Novartis also has won three cases arising out of the federal MDL:  Hogan v Novartis Pharm. Corp. (E.D.N.Y.); Brodie v. Novartis Pharm. Corp. (E.D. Mo.); and Kyle v. Novartis Pharm. Corp. (W.D. Ky).  In Baldwin v. Novartis Pharm. Corp., No. 2:06-cv-4049-MJW (W.D. Mo. Apr. 9, 2012), the jury returned only $225,000.00 in compensatory damages while rejecting entirely plaintiff’s claim for punitive damages.  In Brown v. Novartis Pharm. Corp., No. 7:08-CV-00130-FL (E.D.N.C.), plaintiff abandoned the lawsuit just two and a half days into trial, voluntarily dismissing all claims against Novartis.

The Sixth Circuit previously upheld summary judgment dismissals in several other cases, including Simmons v. Novartis Pharm. Corp., No. 11-5053, 2012 WL 2016249 (6th Cir. June 5, 2012); Thomas v. Novartis Pharm. Corp., 443 F. App’x 58 (6th Cir. 2011) (affirming dismissal of Thomas, Anderson and Melau cases); andEmerson v. Novartis Pharm. Corp., 446 F. App’x 733 (6th Cir. 2011). 
 
Novartis is represented in Patterson by Firm partners Robert E. Johnston and Ranjit S. Dhindsa.

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