Novartis wins dismissal of Zometa® case in Illinois federal court based on plaintiff’s misrepresentations and failure to properly substitute deceased plaintiff.



N.D. Il. -- United States District Court for the Northern District of Illinois

Pharmaceutical Products


The Honorable Milton I. Shadur, Senior District Judge of the United States District Court for the Northern District of Illinois, ordered dismissal with prejudice of a Zometa® case based on plaintiff’s misrepresentations and failure to substitute a proper party in place of the deceased original plaintiff.  The July 23, 2014 dismissal is the fifteenth of its type for Novartis Pharmaceuticals Corporation in the Aredia®/Zometa® litigation.

The case, Porter v. Novartis Pharm. Corp., 1:06-cv-03052 (N.D. Ill. July 23, 2014), 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.) (“the MDL”), and was remanded from the MDL to the Northern District of Illinois.  Judge Shadur’s July 23, 2014 Opinion explained that although Stuart D. Porter, the son of the deceased original plaintiff, had been approved as substitute plaintiff by the MDL Court, that substitution was based on “flat-out misrepresent[ations]” that Mr. Porter had authority to pursue the litigation as the executor of his father’s estate.  In reality, Mr. Porter had never obtained the necessary authority required to act as executor because he had never been appointed as such by an Illinois probate authority, as required under Illinois law.

Explaining that “a host of other Aredia/Zometa actions [] have been dismissed with prejudice based on improper substitutions and other substitution errors,” Judge Shadur cited in particular the Fifth Circuit’s recent opinion in Wilson v. Novartis Pharm. Corp., No. 13-10309, 2014 WL 3378316 (5th Cir. July 11, 2014) and the opinion of the U.S. District Court for the Middle District of Pennsylvania’s in Wallace v. Novartis Pharm. Corp., No. 3:12-cv-1905, 2013 WL 6198943 (M.D. Pa. Nov. 27, 2013), which “ordered dismissal with prejudice because of the selfsame improprieties that have fatally tainted plaintiff’s lawsuit here, including the misrepresentation as to representative status by the substituted plaintiff and the failure to obtain a timely appointment as the personal representative for the original plaintiff’s estate as required by state law.”

In addition to plaintiff’s failure to comply with Illinois state law, Judge Shadur held that plaintiff also failed to comply with Federal Rule of Civil Procedure 25(a), which provides the procedure for substituting deceased plaintiffs, and the MDL Court’s Case Management Order, which supplements the requirements of Rule 25.  Based on all of these mistakes, Judge Shadur dismissed the case with prejudice, holding that “plaintiff and his counsel have simply blown any right to proceed with this action.”

Novartis is represented in this matter by Firm partner Kirby T. Griffis.