Law360, New York (March 05, 2010) -- A federal judge has denied a bid by Novartis Pharmaceuticals Corp. to toss 40 cases in multidistrict litigation that alleges the company failed to adequately warn that its bone cancer drugs Aredia and Zometa could cause jawbones to deteriorate.
Judge Todd J. Campbell of the U.S. District Court for the Middle District of Tennessee denied Novartis' summary judgment motion on Wednesday. The 40 cases were brought under Florida law, and Novartis argued a state statute required the judge to throw out the cases.
The suits represent a chunk of the approximately 560 cases in the MDL. In addition, another 150 similar cases are consolidated in state court in New Jersey, said John Vecchione, an attorney for the plaintiffs' steering committee.
Wednesday's ruling paves the way for the 40 cases to go to trial. In October, a state jury in Montana awarded $3.2 million in damages in a similar case over Zometa in what was considered a bellwether trial for the MDL.
"The takeaway on this is that the evidence is so vast in [these cases], there's no silver bullet to get rid of them," Vecchione said of Wednesday's ruling.
In court papers, Novartis argued Florida law presumes manufacturers are not liable in product liability cases when the product at issue complied with certain regulations. In a previous ruling in the MDL, the court dismissed one Florida case based on this presumption statute.
Novartis argued the 40 cases were similar, requiring the court to dismiss them, too.
Judge Campbell rejected Novartis' assertion. In the first case dismissed, the plaintiff argued that the presumption statute did not apply because any approvals by the U.S. Food and Drug Administration were obtained improperly. That argument, though, was preempted by federal law, the court found.
But in the 40 cases at issue, the plaintiffs argued that the presumption statute could be invalidated by evidence — not given in the first case — that shows the products were clearly defective and unreasonably dangerous. Judge Campbell agreed there was enough evidence to send the cases to trial.
"The court finds that plaintiffs have offered proof sufficient to avoid summary judgment on this issue," the judge wrote.
"The statutory presumption will apply at trial, but plaintiffs have sufficiently raised genuine issues of material fact as to their ability to rebut that presumption. A jury will have to determine whether the presumption has been overcome in each case."
Florida's law does not actually say what evidence needs to be offered to overcome the presumption statute, and Vecchione said he believed Wednesday's ruling was the first time a court was required to determine what evidence could qualify.
"We put in material that we filed before and the court was well aware of, we just marshaled it in such a way that the court could clearly see these cases deserve to go to trial," he said. "This is the first case to really adjudicate this presumption and what's required, and we have cleared the hurdle relatively easily."
An attorney for Novartis was not immediately available for comment on Friday.
The plaintiffs steering committee, which briefed the issue, is being represented by Valad & Vecchione PLLC.
Novartis is being represented by Hollingsworth LLP.
The MDL is In re: Aredia and Zometa Products Liability Litigation, case number 06-MD-1760, in the U.S. District Court for the Middle District of Tennessee.