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We’ve been hyperactive members of the peanut gallery when it comes to the Aredia/Zometa litigation. We’ve griped about motions and rulings on Daubert and learned intermediary (see, for example, here), and we’ve criticized plaintiffs’ lawyers for trying to have it both ways on confidentiality of company documents (see here). (A plaintiff lawyer-blog issued a screed against us on the confidentiality issue. We’ve responded. Another plaintiff-blog responded. It’s not quite at the “Oh yeah” stage, but we’re getting there. Stay tuned. We’re not quite done yet.)
So it’s only fair that we tip the cyber cap to the defense lawyers after a nice trial victory. The Aredia-Zometa litigation resides for the most part in an MDL in M.D. Tenn., where there are about 550 cases. But there are also about 150 more cases in New Jersey state court, a jurisdiction where plaintiff lawyers typically harbor high hopes. A Montana jury had awarded a plaintiff $3.2 million in the only other one of these cases to go to trial, so one might well tremble at what a New Brunswick jury would do. How high is up? And yet the good guys (if you don’t know that means the D side you clearly haven’t been reading this blog enough) recently won a trial in one of the New Jersey cases, Bessemer v. Novartis Pharmaceuticals Corp., MID-L-1835-08-MT, Middlesex County. That’s a great result and is the product of some great work.
This case was the plaintiff committee’s number one trial choice from the New Jersey Aredia/Zometa docket. It’s not hard to see why. The allegation in these cases is that Aredia/Zometa causes osteonecrosis of the jaw. From what we hear, this plaintiff had a particularly difficult course of treatment. including a complete jaw amputation and resection. There were photographs, and they were just as compelling as you’d imagine. But there’s another side of the story. The plaintiff was a stage IV breast cancer survivor and these drugs are nothing short of miraculous for slowing bone loss typically associated with the battle against such cancer. The trial lasted 13 days, including jury selection. After two hours of deliberation, the jury returned a verdict for Novartis by answering “No” to the first question: “Did Novartis fail to provide an adequate warning to Mrs. Bessemer’s prescribing physician concerning the risks of jaw problems from Aredia and/or Zometa that Novartis either knew or should have known prior to Mrs. Bessemer discontinuing the use of the drug(s)?” While any defense verdict is gratifying for the defendant, in our experience clients have been especially pleased to win on the failure-to-warn question. A finding that the warnings were adequate is sweet vindication and is of broader application than a win on, say, specific causation.
A lot goes into trial victories like this. The depositions and cross-exams of plaintiff’s experts were, as usual, key. (Before you ask — yes, Suzanne Parisian was one of plaintiff’s experts.). The defense closing argument focused on many selections from the trial transcript taken from the mouths of plaintiff’s own witnesses.
The pretrial rulings were a mixed bag. No surprise. (One is tempted to mangle the prose of the great screenwriter Robert Towne and say: “Forget it, Jake. It’s New Jersey.”) And there was, after all, a trial. So, no summary judgment on failure-to-warn and breach of express warranty. But the defense had earned summary judgment on design defect, breach of implied warranty, and punitive damages. Importantly, the defense also prevailed on summary judgment regarding Direct-to-Consumer advertising, on the grounds that the dreaded Perez v. Wyeth Laboratories, Inc. doctrine did not apply.
Congrats to our friends on the defense side, including Joe Hollingsworth and his firm.