MDL judge grants summary judgment in favor of Firm client on product identification defense.
On November 30, 2007, Chief Judge Todd J. Campbell of the United States District Court for the Middle District of Tennessee – appointed to over see the multidistrict litigation captioned In re Aredia and Zometa Products Liability Litigation, No. 3:06-MD-1760 (M.D. Tenn.) – entered summary judgment in favor of Novartis Pharmaceuticals Corporation (“NPC”) on claims brought by plaintiff Carrie Lee alleging that “she is at an increased risk of developing osteonecrosis of the jaw (ONJ) as a result of her use of the bisphosphonate drugs Zometa and/or Aredia.” Ms. Lee had previously been offered as a representative for a proposed dental monitoring class (Chief Judge Campbell previously denied plaintiffs’ motion to certify that dental monitoring class on October 10, 2007).
Notwithstanding the allegations in the complaint, the plaintiff conceded that she never took Zometa®. The case, thus, turned on whether plaintiff had taken NPC’s name-brand drug, Aredia® (pamidronate disodium), or a generic bioequivalent. NPC submitted affidavits from the Directors of Pharmacy at the two hospitals where plaintiff had been infused, which established that neither facility had purchased the name-brand product drug within the six months before the date that plaintiff had first been treated with pamidronate disodium at their facilities. In response to this evidence, the plaintiff sought additional discovery under Rule 56(f) and also argued that her own testimony regarding her treatment and medical records referring to “Aredia®” were sufficient to create an issue of material fact precluding summary judgment.
The Court rejected plaintiff’s plea for additional discovery under Rule 56(f) on the grounds that the plaintiff bore the burden of establishing that she had been unable to obtain adequate discovery on the issues provided, holding:
[T]he issue about which Plaintiff seeks additional discovery is the most fundamental element of her claim: whether she, in fact, took the drug about which she had sued Defendant. Plaintiff should have been able to establish this fact before she filed her lawsuit. Certainly Plaintiff has had time since this case was filed in September 2005 in which to, through due diligence, discover evidence to support her claim that she, in fact, took Aredia.
The Court also rejected plaintiff’s reliance on her own testimony and certain medical records, holding “that these self-serving statements and hearsay documents are insufficient, for purposes of summary judgment, to rebut the evidence presented by Defendant which shows that Plaintiff Lee did not take Aredia.” Chief Judge Campbell then granted summary judgment in favor of NPC.
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.