Messick v. Novartis Pharmaceuticals Corp., No. 13-15433 (9th Cir. 2014)
Annotate this CasePlaintiff filed suit against Novartis, manufacturer of Zometa, alleging products liability, negligent manufacture, negligent failure to warn, breach of express and implied warranty, and loss of consortium. On appeal, plaintiff contended that the district court erred by excluding the causation testimony offered by her expert when it found the testimony to be irrelevant and unreliable. The court concluded that the expert's testimony was relevant because it indicated that plaintiff's bisphosphonate use was a substantial factor in her development of bisphosphonate-related osteonecrosis of the jaw. The court also concluded that the expert's testimony was reliable where he used a differential diagnosis grounded in significant clinical experience and examination of medical records and literature. Accordingly, the court concluded that the expert's testimony created a genuine issue of material fact regarding the specific causal link between plaintiff's bisphosphonates treatment and her development of osteonecrosis of the jaw. The court reversed the district court's summary judgment in favor of Novartis and remanded.
Court Description: Expert Testimony. The panel reversed the district court’s summary judgment in favor of Novartis Pharmaceuticals Corporation because the district court improperly excluded expert testimony. Plaintiff offered Dr. Richard Jackson’s testimony on osteonecrosis of the jaw and bisphosphonate-related osteonecrosis of the jaw generally (“BRONJ”), and on the causal link between plaintiff’s bisphosphonate treatment and later development of BRONJ. The panel held that the district court erred by excluding the causation testimony offered by the plaintiff’s expert, Dr. Jackson, when it found the testimony to be irrelevant and unreliable. The panel held that Dr. Jackson’s testimony indicated that plaintiff’s bisphosphonate use was a substantial factor in her development of BRONJ, so the testimony was relevant. The panel also held that the testimony was reliable where Dr. Jackson testified a medical condition was a substantial causative factor. The panel concluded that Dr. Jackson’s expert testimony created a genuine issue of material fact regarding the specific causal link between plaintiff’s bisphosphonate treatment and her development of osteonecrosis of the jaw.
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