Parkinson v. Novartis Pharms. Corp.

• Decision Date: 20 March 2014
• Docket Number: No. 3:12–CV–02089–BR.,3:12–CV–02089–BR.
• Citation: 5 F.Supp.3d 1265
• Parties: Carole PARKINSON, Personal Representative of Carlie J. Odia (deceased) and her estate, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
• Court: U.S. District Court — District of Oregon

5 F.Supp.3d 1265

Carole PARKINSON, Personal Representative of Carlie J. Odia (deceased) and her estate, Plaintiff,

v.NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.

No. 3:12–CV–02089–BR.

United States District Court,

D. Oregon.

Signed March 20, 2014.

Jeffrey A. Bowersox, Lake Oswego, OR, John J. Vecchione, Fairfax, VA, for Plaintiff.

Anne M. Talcott, Ryan P. Boyle, Jeffrey D. Hern, Schwabe Williamson & Wyatt, PC, Portland, OR, Katharine R. Latimer, Donald W. Fowler, Gregory Scott Chernack, Philip M. Busman, Ranjit S. Dhindsa, Hollingsworth LLP, Washington, DC, for Defendant.

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Defendant Novartis Pharmaceuticals Corporation's Motion (# 45) to Exclude the Testimony of Plaintiff's Expert Dr. Eric Sung and Defendant's Motion (# 51) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendant's Motion for Summary Judgment, DENIES as moot Defendant's Motion to Exclude, DENIES as moot all other pending Motions, and DISMISSES this matter with prejudice.

FACTUAL BACKGROUND

On January 13, 2003, Plaintiff Carlie Odia ¹ was diagnosed with stage IIIB breast cancer and began undergoing chemotherapy. On June 19, 2003, Plaintiff refused to receive any further chemotherapy.

On May 23, 2005, Plaintiff underwent radiation therapy of her pelvis to treat “intractable pain” caused by her “extensively metastic” breast cancer. Joint Statement of Agreed Facts, Ex. 6 at 1.

On May 25, 2005, Plaintiff underwent surgery to address “impending fractures in both femurs.” Def.'s Mem. in Support of Summ. J., Ex. 9 at 1. Jeffrey Lyman, M.D., treating surgeon, noted Plaintiff had “metastatic disease with more than 50 percent cortical involvement of the left side and significant pain and lucencies consistent with metastatic disease on the right as well.” Id.

On May 27, 2005, Mark Seligman, M.D., treating physician, noted the following with respect to Plaintiff:

The patient is known to have breast cancer. The presentation with a large axillary mass certainly sounds ominous. She has metastatic disease at this time documented in her bones, and a recent CT scan certainly suggests pulmonary metastases as well. Treatment of stage 4 breast cancer is palliative, but there are several treatment modalities that can produce good palliation and extend longevity.... I am going to treat her with a bisphosphonate. Bisphosphonates have an important role in preventing adverse bony events in patients with bony metastases. They decrease bone pain as well. They are also useful as anti hypercalcemic agents. I notice that the patient's chemistry profile showed a calcium of 10.5 preoperatively. She is now somewhat immobilized, and has extensive metastases, and, she is therefore certainly at risk for hypercalcemia.

Def.'s Mem. in Support of Summ. J., Ex. 10 at 3–4.

In June 2005 Dr. Seligman started Plaintiff on monthly infusions of Aredia, a bisphosphonate.

Dr. Seligman testified at deposition that when he prescribed Aredia for Plaintiff in June 2005, he was “aware of bisphosphonates as [a] potential risk factor for [Osteonecrosis of the Jaw] ONJ.” Def.'s Mem. in Support of Summ. J., Ex. 13 at 116. Nevertheless, Dr. Seligman prescribed Aredia for the reasons noted in his May 27, 2005, chart note and because

[i]n oncology [bisphosphonates are] used because they improve the quality of patients' lives by increasing the strength of the bone, preventing bad bone events, by which we mean fractures and collapses of bones; improving pain. They also lower the calcium for patients who need that. And they do so—and these benefits are somewhat—between 30 and 50 percent of bad bone events are prevented by the use of these medications.

Def.'s Mem. in Support of Summ. J., Ex. 13 at 36. Dr. Seligman believes the benefits of bisphosphonates outweigh the risk of ONJ and continues to prescribe Aredia and Zometa to patients today. Id. at 132.

By June 27, 2005, Plaintiff was using a walker and a wheelchair due to her metastic cancer “with bony metastases.” Def.'s Mem. in Support of Summ. J., Ex. 8 at 1.

By August 2005 Plaintiff was “immobile” and “unable to engage in activities of daily living of any kind” due to skeletal complications resulting from her cancer metastasizing to her bones. Def.'s Mem. in Support of Summ. J., Ex. 7 at 51–52.

On July 19, 2006, Plaintiff underwent a total right hip arthroplasty to address the diagnosis of “posttraumatic osteoarthritis secondary to tumor necrosis and osteonecrosis” in her right hip. Joint Statement of Agreed Facts, Ex. 8 at 1.

On September 7, 2006, Dr. Seligman changed Plaintiff's bisphosphonate from Aredia to Zometa because Zometa has a significantly shorter infusion time.

On December 6, 2006, Plaintiff went to the Multnomah County Health Department to obtain dental care for the first time in five years. Plaintiff reported on the Multnomah County Health Department's Dental Health History form that she had an infected upper left molar and had lost a crown. Joint Statement Agreed Facts, Ex. 11 at 1. Plaintiff also reported she was not undergoing any medical or health treatment, she did not have any medical or health provider “at the moment,” and she was not on any medication. Id. at 2. In the portion of the Dental Health History form in which Plaintiff was asked to circle any conditions she “ha[s] or ... ha[s] ever had,” Plaintiff did not circle cancer or radiation treatment and instead circled “none of the above.” Id.

Plaintiff was examined and evaluated by Michelle Keys, D.M.D., who noted swelling at Plaintiff's tooth # 14, which was missing a crown and had severe decay. Def.'s Mem. in Support of Summ. J., Ex. 31 at 1. Dr. Keys concluded the tooth was “nonrestorable.” Id. Dr. Keys testified at deposition that there were not any dental procedures she believed “would work to save that tooth” nor any alternatives to extracting the tooth. Dr. Keys, therefore, extracted the tooth in an uncomplicated procedure on December 6, 2006. Def.'s Mem. in Support of Summ. J., Ex. 30 at 66. Dr. Keys testified at deposition that there is not anything in Plaintiff's records that indicates to Dr. Keys that she should have been aware in December 2006 that Plaintiff had cancer or that she was under the care of another physician. Id. at 34.

In December 2006 Plaintiff was also scheduled to undergo a root canal on the adjoining tooth (# 13). After cancelling twice, Plaintiff returned to the Multnomah County Health Department on September 21, 2007, for an examination and evaluation of tooth # 13.

On September 21, 2007, Plaintiff was examined by Athena Bettger, D.M.D., and diagnosed with a possible fracture of tooth # 13 and irreversible pulpitis. Def.'s Mem. in Support of Summ. J., Ex. 32 at 1. Dr. Bettger recommended extracting tooth # 13 because that tooth had a “poor/hopeless prognosis.” Id. At deposition Dr. Bettger explained Plaintiff's “tooth [# 13] was mobile had a poor longevity because of the poor crown-to-root ratio, and there was a possible fracture. The tooth [was] non-restorable.” Def.'s Mem. in Support of Summ. J., Ex. 26 at 61. Dr. Bettger also did not know Plaintiff had cancer when she treated her in September 2007. The fact that a patient has cancer is something Dr. Bettger would have noted in the patient's chart, but Plaintiff's chart did not contain any such note.

On September 28, 2007, Plaintiff called the Multnomah County Health Department to report that she was still swollen and in pain from her September 21, 2007, extraction of tooth # 13.

On October 1, 2007, Plaintiff returned to the Multnomah County Health Department and was again seen by Dr. Bettger. At that appointment Plaintiff advised Dr. Bettger for the first time that she had breast cancer and was taking Zometa. Dr. Bettger's treatment notes reflect she discussed with Plaintiff that her problem might be “bisphosphonate related osteonecrosis” and that Plaintiff “became agitated stating ‘it's just dry socket.’ ” Def.'s Mem. in Support of Summ. J., Ex. 33 at 1.

At some point Dr. Myall saw Plaintiff about her jaw issues and noted Plaintiff might be suffering from ONJ.

On January 30, 2008, Plaintiff was seen by Brian Woo, D.M.D., oral surgeon, who concluded Plaintiff had bisphosphonate-related ONJ “associated with extraction sites of teeth # 13 and # 14.” Def.'s Mem. in Support of Summ. J., Ex. 35 at 2. Dr. Woo started Plaintiff “on Pendex mouth rinses and local wound care along with chronic oral antibiotics.” Id.

On January 30, 2008, Dr. Myall saw Plaintiff for evaluation of her ONJ. Plaintiff advised Dr. Myall that “her symptoms have improved and there have been no signs of infection.” Def.'s Mem. in Support of Summ. J., Ex. 34 at 1. Dr. Myall noted Plaintiff's ONJ “has stayed quiescent and may have improved slightly. There is no need for intervention at this time.” Id. at 2.

Plaintiff died on October 9, 2008.

PROCEDURAL BACKGROUND

On March 20, 2008, Plaintiff brought an action against Defendant in the United States District Court for the District of Columbia seeking compensatory and punitive damages on the ground that Aredia and Zometa caused her to develop ONJ. Plaintiff brought claims for (1) strict liability, (2) negligent manufacture, (3) negligent failure to warn, (4) breach of express warranty, and (5) breach of implied warranty of merchantability.

At some point the Judicial Panel on Multidistrict Litigation (MDL) transferred Plaintiff's action to the United States District Court for the Middle District of Tennessee pursuant to 28 U.S.C. § 1407. Following discovery and briefing of dispositive motions in the MDL court, the MDL panel remanded the matter to the United States District Court for the District of Columbia.

In November 2012 the United States District Court for the District of Columbia transferred the matter to this Court.

On March 11, 2013, Plaintiff filed an Amended Complaint against Defendant in which she brings claims for (1) strict liability,² (2) negligent...