Another remanded Aredia/Zometa case has apparently bitten the dust. See Ingram v. Novartis Pharmaceuticals Corp., No Civ-05-913-L, slip op. (W.D. Okla. July 18, 2012). Ingram threw out all of the plaintiff’s on warning causation grounds, a strong defense in this litigation, which involves a drug used to treat cancer. A basic problem that plaintiffs face in such situations is that, when the alternative is likely death by cancer, most prescribing oncologists aren’t going to be swayed by the possibility of a much lesser injury (with bisphosphonates, osteonecrosis of the jaw). So an allegedly defective warning about the lesser injury won’t deter anything.
The law, in Oklahoma as elsewhere, requires warning causation – some material change in prescriber conduct:
Slip op. at 6.
Even if the plaintiff establishes a duty to warn and a breach of that duty, she must further establish proximate causation by showing that had defendant issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided.
Slip op. at 4. Oklahoma is one of those unfortunate jurisdictions that applies a heeding presumption even in pharmaceutical cases, but for the reasons we discussed above, it was easily rebutted in Ingram.
[The prescriber] testified that had he known of [the drug’s] potential complication of osteonecrosis of the jaw, he would have prescribed it for [plaintiff’s decedent] anyway. This testimony establishes that although the prescribing physician . . . would have read and heeded the warnings regarding [the drug] and ONJ, this would not have changed [the prescriber’s] decision to prescribe it to [the decedent].
As is also common in these cases, plaintiff tried to salvage the case with lesser causation evidence – that the prescriber, while still using the drug, now gives various advice about dental issues. Slip op. at 6-7. That didn’t work in Ingram because even the plaintiff’s own expert (a Dr. Marx – is that Harpo, Groucho, Chico, or Zeppo?) admitted that the decedent already had ONJ. Slip op. at 8:
When this finding [pre-existing ONJ] is kept in mind, it is clear that plaintiff’s arguments regarding [the prescriber’s] changed prescribing practices are insufficient to discharge her burden of proof on proximate causation. As demonstrated above, [the prescriber] has unequivocally testified that had he known in January of 1999 that [the drug] had the potential complication of ONJ, he would have prescribed it for [the decedent] anyway.
Slip op. at 8.
The court also throws out plaintiff’s wrongful death claim, because it wasn’t supported by any expert testimony. We’ve commented previously about the weakness of many of the cases we’re seeing after remand from the A/Z MDL, and judging by the expert testimony here, Ingram looks like another.
In any event put another one in the “W” column for the Hollingsworth Aredia team.