Martin Calhoun Secures Series of Victories for Novartis in the Sixth Circuit Court of Appeals

On August 23, 2011, the Sixth Circuit issued a series of opinions in favor of Novartis Pharmaceuticals Corporation in the ongoing Aredia/Zometa MDL proceedings. In Anderson, Melau, and Thomas vs. NPC, the Sixth Circuit affirmed grants of summary judgment in the three cases. In all three cases the plaintiffs had no retained experts on the subject of specific causation, i.e., did Aredia and/or Zometa cause them to develop ostenecrosis of the jaw. Instead, they sought to rely upon the testimony of treating physicians to meet this burden. The district court held that none of these treating physicians were qualified to opine on this issue and granted summary judgment for NPC in the 3 cases. On appeal, the Sixth Circuit affirmed, holding that the district court had not abused its discretion in excluding these witnesses on the issue of causation. The appeals court held that in addition to the purported expert's disavowal of expertise on the subject at issue, plaintiffs had not met their burden to show that the treaters possessed the requisite qualifications to opine about causation. Because the plaintiffs lacked causation evidence, summary judgment was properly granted.

In Emerson v. NPC, the Sixth Circuit affirmed a grant of summary judgment based upon a statutory presumption created by Florida law. Florida has enacted a government rules defense which meant that NPC was entitled to a rebuttable presumption that Aredia and Zometa were not defectively dangerous because they were FDA approved. The parties agreed that the presumption applied, and the primary argument raised by the plaintiff to overcome this presumption was that NPC had defrauded the FDA. The appeals court held that such an assertion was, however, preempted, citing Buckman. The other assertions that plaintiff made to overcome this presumption were made without particularity and incorporated a massive volume of documents. The Sixth Circuit held that the district court was not required to do the work of plaintiff's counsel and perform a detailed review of the record.

Novartis is represented in the Aredia/Zometa MDL by Hollingsworth LLP.