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Novartis wins dismissal in S.D. Fla. Zometa®/Aredia® case after court determines “Plaintiff has made a mockery of the judicial system.”

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On June 27, 2013, the United States District Court for the Southern District of Florida granted Novartis Pharmaceuticals Corporation’s motion for summary judgment based on judicial estoppel in Taylor v. Novartis Pharm. Corp., No. 0:06-cv-61337-JIC (S.D. Fla. Jun. 27, 2013).

Plaintiff Keith Taylor filed for Chapter 7 bankruptcy in 2010, three and a half years after filing his lawsuit against Novartis.  During his bankruptcy proceedings plaintiff “inexplicably” failed to disclose his pending claim against Novartis to the bankruptcy court as required.  Order at 7.  Judge James Cohn determined that “the record unequivocally establishes that Plaintiff had a motive to conceal this lawsuit from the Bankruptcy Court: namely to obtain a discharge of nearly $200,000 in debt while any funds he later recovered in this case would be his own.”  Id. at 7.

Noting that “[f]ull and honest disclosures in bankruptcy proceedings are ‘crucial to the system[]’s effective functioning,” Order at 6, the court concluded that “Plaintiff has made a mockery of the judicial system.”  Order at 8.  Based on these conclusions, the court applied the doctrine of judicial estoppel to protect the integrity of the judicial process, and dismissed plaintiff’s case, preventing him from asserting the inconsistent position that he had a claim against Novartis after stating under oath in the bankruptcy proceeding that he did not.

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 Southern District of Florida for a trial that was scheduled to begin this fall.

The Taylor decision is the latest in a string of Novartis wins in federal and state courts in litigation alleging that ONJ resulted from treatment with Aredia® and/or Zometa®, which are used to treat patients who have cancer that has metastasized to bone.  Just this week, a jury returned a verdict for Novartis after a two-week trial inHill v. Novartis Pharm. Corp., No. 1:06-cv-00939-JSR-SAB (E.D. Cal. June 26, 2013), where the judge allowed deliberations after having indicated he would grant Novartis’s motion for judgment as a matter of law on the issue of proximate causation.  The Hill case was the twelfth trial out of consolidated litigation in federal and state courts.  Hill is the seventh complete defense verdict, preceded by wins in 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. Oct. 22, 2010), aff’d, No. A-2069-10T1, 2012 WL 2120777 (N.J. Super. Ct. App. Div. June 13, 2012).

Novartis has won 49 cases on summary judgment and obtained dismissal of over 150 other cases in the Aredia®/Zometa® federal and state consolidated litigations.

Novartis is represented in this matter by partners Matthew J. Malinowski, and Heather A. Pigman.