Earp v. Novartis Pharms. Corp.

• Decision Date: 19 August 2014
• Docket Number: No. 5:11-CV-680-D,5:11-CV-680-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: JIMMY EARP, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.

JIMMY EARP, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.

No. 5:11-CV-680-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

August 19, 2014

ORDER

On May 14, 2014, following a seven-day jury trial and nine hours of deliberation, a jury returned a defense verdict for Novartis Pharmaceuticals Corporation ("Novartis" or "defendant") in Jimmy Earp's ("Earp" or "plaintiff") products-liability action. See [D.E. 227]. The jury found that Earp failed to prove that Novartis's unreasonable failure to warn Earp concerning the use of the prescription drugs Aredia or Zometa proximately caused Earp's osteonecrosis of the jaw. See [D.E. 228, 229]. On May 28, 2014, Novartis timely filed a motion seeking $22,051.53 in costs. See [D.E. 230]. On June 11, 2014, Earp objected to Novartis's motion for costs, and asked the court to disallow the costs, or alternatively, to reduce them. See [D.E. 232, 233]. On June 18, 2014, Novartis responded to Earp's objections. See [D.E. 238]. As explained below, the court grants Novartis's motion for costs and awards Novartis $20,847.43 in costs.

I.

Federal Rule of Civil Procedure 54(d)(1) governs a post-judgment motion for an award of costs. See Fed. R. Civ. P. 54(d)(1). Rule 54(d)(1) provides that "costs—other than attorney's fees—should be allowed to the prevailing party." Id. A "prevailing party" is "a party in whose favora judgment is rendered" or "one who has been awarded some relief by the court." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001) (quotation and alteration omitted). Rule 54(d)(1) "gives rise to a presumption in favor of an award of costs to the prevailing parry." Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994); see Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981).

When awarding costs to the prevailing party, the court looks to federal law to determine the scope of the award. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-43 (1987), superseded on other grounds by statute, 42 U.S.C. § 1988(c). Section 1920 of Title 28 of the United States Code lists taxable costs. 28 U.S.C. § 1920; see Crawford Fitting Co., 482 U.S. at 441 ("[Section] 1920 defines the term 'costs' as used in Rule 54(d).").¹ Section 1920's list of recoverable costs is exhaustive as to "expenses that a federal court may tax under the discretionary authority found in Rule 54(d)." Crawford Fitting Co., 482 U.S. at 441-42. Accordingly, "Rule 54(d) does not provide authority to tax as costs those expenses not enumerated in [section] 1920." Herold v.Haioca Corp., 864 F.2d 317, 323 (4th Cir. 1988); see Crawford Fitting Co., 482 U.S. at 441-42.

A court's local rules also inform a party's ability to recover costs. Pursuant to Federal Rule of Civil Procedure 83, "a district court . . . may adopt and amend rules governing its practice." Fed. R. Civ. P. 83(a)(1). Local rules promulgated pursuant to Rule 83 "have the force and effect of law, and are binding upon the parties and the court which promulgated them." Jackson v. Beard, 828 F.2d 1077, 1078 (4th Cir. 1987) (quotation omitted). District courts have "broad discretion to interpret their local rules [and] [o]nly in rare cases will [appellate courts] question the exercise of discretion in connection with the application of . . . local rules." Quails v. Blue Cross of Cal., Inc., 22 F.3d 839, 842 n.2 (9th Cir. 1994) (citation and quotations omitted); Silicon Knights, Inc. v. Epic Games, Inc., 917 F. Supp. 2d 503, 510 (E.D.N.C. 2012); AM Props. v. Town of Chapel Hill, 202 F. Supp. 2d 451, 453-54 (M.D.N.C. 2002). District courts routinely apply local rules regulating the nature of recoverable costs. See, e.g., Silicon Knights, Inc., 917 F. Supp. 2d at 510; Couram v. S.C. Dep't of Motor Vehicles, Civil Action No. 3:10-00001-MBS, 2011 WL 6115509, at *2-3 (D.S.C. Dec. 8, 2011) (unpublished); Bland v. Fairfax Cnty., No. 1:10CV1030 (JCC/JFA), 2011 WL 5330782, at *5 (E.D. Va. Nov. 7, 2011) (unpublished). This court has promulgated a local rule governing the recovery of costs. See Local Civil Rule 54.1.² Accordingly, this local rule furtherrefines the scope of recoverable costs.

II.

A.

On September 1, 2006, Earp sued Novartis alleging various claims concerning two prescription drugs that Novartis manufactures, Aredia and Zometa. Earp received the two drugs via prescription from his two oncologists as part of his treatment for multiple myeloma, a typically fatal and painful form of cancer. The action was transferred to the United States District Court for the Middle District of Tennessee for Multi-District Litigation ("MDL") proceedings. After discovery, the MDL court transferred the case back to this court. See Earp v. Novartis Pharm. Corp., No. 5:11-CV-680-D, 2013 WL 4854488, at *1 (E.D.N.C. Sept. 11, 2013) (unpublished).

On September 11, 2013, the court granted in part and denied in part Novartis's motion for summary judgment. See id. The court granted summary judgment to Novartis on Earp's breach of express warranty and design defect claims, and Earp abandoned his strict liability and manufacturing defect claims. See id. at*5-6. The court denied Novartis's motion for summary judgment on Earp's breach of implied warranty claim. See id. Thus, two claims survived for trial: negligent failure towarn and breach of the implied warranty of merchantability. See id. Patricia Earp's loss of consortium claim also survived summary judgment, but Patricia Earp dismissed that claim at the final pretrial conference. See [D.E. 168].

At the close of Earp's evidence, the court granted judgment as a matter of law to Novartis on Earp's breach of implied warranty claim. See [D.E. 244] 19-21; Fed. R. Civ. P. 50(a). Thus, Earp's negligent-failure-to-warn claim was the sole claim that went to the jury.

The verdict form asked the jury to answer a series of questions. See [D.E. 228]; see also [D.E. 246]. The jury found that Earp had proven that Aredia and/or Zometa medically caused him to develop osteonecrosis of the jaw. See [D.E. 228]. The jury also found that Novartis unreasonably failed to warn Earp concerning the use of Aredia and Zometa when Earp was receiving Aredia or Zometa via prescriptions from his treating oncologists, Dr. Kritz and Dr. Yoffe. See id. The jury, however, then found that Earp had failed to prove that Novartis's unreasonable failure to warn concerning the use of Aredia and Zometa was a proximate cause of the condition of Earp's jaw. See id.

In connection with proximate cause, the court instructed the jury as follows:

In considering the issue of proximate cause, you must consider what warning Novartis reasonably should have provided based upon what Novartis knew or reasonably should have known at a given time when Mr. Earp was receiving Aredia or Zometa via prescription from Drs. Kritz or Yoffe and whether a different warning at that time would have changed the result for Mr. Earp's jaw. Thus, if you find that Mr. Earp has proved that Novartis should have given a different warning or instruction at a particular time when he was receiving Aredia or Zometa via prescription from Drs. Kritz or Yoffe, you must then consider whether Mr. Earp also has proved, by a preponderance of the evidence, that a different warning or instruction at the time he was receiving Aredia or Zometa via prescription from Drs. Kritz or Yoffe would have resulted in different medical or dental treatment for him, that he would have accepted such different medical or dental treatment, and that such different medical or dental treatment would have prevented or mitigated his osteonecrosis of the jaw.

Finally, as to the third issue, on which Mr. Earp has the burden of proof, if you find, by a preponderance of the evidence, that Novartis's unreasonable failure to provide an adequate warning or instruction concerning the use of Aredia and Zometa was a proximate cause of Mr. Earp's osteonecrosis of the jaw, then it would be your duty to answer this third issue "Yes" in favor of Mr. Earp. If, on the other hand, you fail to so find, then it would be your duty to answer "No" in favor of Novartis.

As the verdict form indicates, if you answer "No," the case is over. You will consider the fourth issue only if you answer "Yes" to this third issue.

[D.E. 246] 24-25.³ "[P]roximate cause is ordinarily a question of fact for the jury, to be resolved by the exercise of good common sense in the consideration of the evidence of each particular case." Williams v. Carolina Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255, 258 (1979) (quotation omitted); Gaines ex rel. Hancox v. Cumberland Cnty. Hosp. Sys., Inc., 203 N.C. App. 213, 219, 692 S.E.2d 119, 122 (2010); Hill v. Williams, 144 N.C. App. 45, 56, 547 S.E.2d 472, 479 (2001); see Adams v. Mills, 312 N.C. 181, 192-93, 322 S.E.2d 164, 172 (1984) (defining proximate cause).

During closing arguments, the attorneys for Earp and Novartis argued their respective positions concerning proximate cause. Compare [D.E. 245] 26, 29, 31-32, 54, 60-70 (plaintiff's argument), with [D.E. 245-1] 24-25, 46-51, 72-74 (defendant's argument). Novartis essentially argued that Earp failed to prove (1) that a different warning would have resulted in different medical or dental treatment for Earp; (2) that any different medical or dental treatment for Earp would have prevented the condition of Earp's jaw, or (3) that Earp would have declined his doctors' recommendation to take Aredia or Zometa if he received a different warning about osteonecrosis of the jaw. See [D.E. 245-1] 24-25, 46-51, 72-74.

Proximate cause was for the jury to decide. In rejecting Earp's arguments concerning proximate cause, the jury was entitled to weigh the evidence and arguments and conclude that a different warning would not have resulted in different medical or dental treatment for Earp from either Earp's oncologists or Earp's dentists. Likewise, the jury was entitled to weigh the evidence and...