Court refuses to certify dental monitoring class against Firm client, Novartis Pharmaceuticals Corporation.

On October 10, 2007, Chief Judge Todd J. Campbell of the United States District Court for the Middle District of Tennessee issued an order denying certification of a class of asymptomatic persons treated with Aredia® and/or Zometa®, pharmaceutical products distributed by firm client, Novartis Pharmaceuticals Corporation. In re: Aredia & Zometa Products Liability Litigation, No. 3:06-MD-1760, slip op. (M.D. Tenn. October 10, 2007).

The putative class representatives claimed that they and others similarly situated are at an increased risk for developing osteonecrosis of the jaw (“ONJ”) because of their treatments with one or both of the drugs, which are the standard of care for the treatment of, inter alia, hypercalcemia of malignancy, multiple myeloma, and bone metastasis from certain other cancers. On behalf of the class, the representatives sought semi-annual dental monitoring, including dental radiographs, which they claimed would help prevent the development of tens of thousands of cases of ONJ. Chief Judge Campbell concluded plaintiffs’ proposed class was imprecisely defined and that their class inclusion criteria would require individual adjudications, which weighed against certification. Chief Judge Campbell ultimately held that the proposed class did not satisfy the typicality or adequacy prongs of Federal Rule of Civil Procedure 23(a) because variations in the various jurisdictions’ substantive laws related to causes of action as well as affirmative defenses, such as on issues of warnings and strict liability, precluded aggregate treatment of class claims, and individual issues, such as specific causation, were inextricably intertwined with any common issues. As a result, Chief Judge Campbell rejected plaintiffs’ request to certify a thirty-four-jurisdiction class, and also rejected plaintiffs’ alternative requests to certify a thirteen-jurisdiction class or a single state class made up of only California residents.

The MDL coordinating cases involving Zometa® and Aredia® was assigned by the Judicial Panel on Multidistrict Litigation to Chief Judge Campbell on April 18, 2006. Hollingsworth LLP is counsel to Novartis Pharmaceuticals Corporation.