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Gilliland v. Novartis Pharms. Corp.

United States District Court, S.D. Iowa, Western Division

July 25, 2014


For Denise Gilliland, Plaintiff: Cheryl P Robertson, John A Girardi, Molly B Weber-Girardi, PRO HAC VICE, GIRARDI KEESE, Los Angeles, CA; J Barton Goplerud, HUDSON MALLANEY SHINDLER & ANDERSON PC, WEST DES MOINES, IA.

For Novartis Pharmaceuticals Corporation, Defendant: Ross W Johnson, LEAD ATTORNEY, FAEGRE BAKER DANIELS, LLP (IA), Des Moines, IA; Christine R.M. Kain, PRO HAC VICE, FAEGRE BAKER DANIELS LLP (MN), MINNEAPOLIS, MN; Donald W. Fowler, James M. Sullivan, John Michael Kalas, Katharine R. Latimer, Peter J Skalaban , Jr., PRO HAC VICE, HOLLINGSWORTH LLP, Washington, DC.

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Before the Court are the following two motions by Novartis Pharmaceuticals Corporation (" Novartis" ), both filed May 15, 2014: (1) Motion to Exclude Testimony of Dr. Eric Sung, D.D.S. (" Dr. Sung" ) (" Motion to Exclude" ) (Clerk's No. 79)[1]; and (2) Motion for Summary Judgment (Clerk's No. 83)[2] (collectively " Novartis's Motions" ).

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Denise Gilliland (" Gilliland" ) responded to each Motion on June 16, 2014. Clerk's Nos. 88, 93. Novartis replied on June 30, 2014. Clerk's Nos. 100, 102. On July 3, 2014, Novartis filed a Notice of Supplemental Authorities in Support of Its Motion for Summary Judgement, Motion to Exclude, and Motion to Exclude Testimony of Plaintiff's Non-Retained Experts (" Notice of Supplemental Authorities" ). Clerk's No. 104. Gilliland responded to Novartis's Notice of Supplemental Authorities on July 10, 2014. Clerk's No. 108. The Motions are fully submitted.


On June 17, 2005, Gilliland was diagnosed with multiple myeloma. As a part of her treatment regimen, she received Zometa infusions from July 1, 2005 until May 1, 2009, when she independently decided to discontinue her Zometa treatment. She was not seen by a dentist prior to receiving her first dose of Zometa. On February 7, 2006, Gilliland underwent a stem cell transplant. On the advice of the physician who performed the transplant, she saw a dentist on January 10, 2006, prior to undergoing the transplant. On April 15, 2010, Dr. Valmont Desa, an oral surgeon, diagnosed Gilliland with osteonecrosis of the jaw (" ONJ" ).

On April 16, 2012, Gilliland filed this lawsuit in the United States District Court for the Central District of California, asserting the following five claims: (1) strict liability; (2) negligent manufacture; (3) negligent failure to warn; (4) breach of express warranty; and (5) breach of implied warranty. See Compl. (Clerk's No. 1) ¶ ¶ 20-49. On October 24, 2012, however, the case was transferred to this Court pursuant to the parties' stipulation. See Clerk's Nos. 10-11. The primary dispute in this lawsuit centers on whether Gilliland's oncologists were aware of the association between bisphosphonates [4] and the risk of ONJ at the time they recommended and prescribed the Zometa treatment to her.


A. Daubert Motions

Novartis's Motion to Exclude calls upon the Court to assume its role as the evidentiary " gatekeeper" and to determine whether to admit the testimony of Dr. Sung, one of Gilliland's proffered expert witnesses. Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the produce of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court explained that when trial courts are faced with a proffer of expert scientific testimony, the Court must determine at

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the outset " whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Making such a determination " entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. In Kumho Tire Co. v. Carmichael, the Supreme Court expanded the general holding of Daubert, which established the district court's role as a gatekeeper, to include all expert testimony based on technical or scientific knowledge. 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Under the Daubert test, the Court's task is to " ensure that any and all scientific evidence is not only relevant, but reliable." Daubert, 509 U.S. at 589. The Court must, therefore, perform a two-step inquiry into the reliability and relevance of the proffered expert testimony. Under the first prong of the test, reliability, the Court must determine whether the expert testimony is based on scientific knowledge and derived from, and validated by, the scientific method. Id. at 590. To aid the trial court in making this determination, the Daubert Court listed four potentially relevant factors, but the Court stressed that it was not setting forth a definitive checklist or test. Id. at 593. The identified factors include: (1) whether the theory or technique " can be (or has been) tested" ; (2) " whether the theory or technique has been subjected to peer review and publication" ; (3) the " known or potential rate of error" ; and (4) whether the theory or technique has gained general acceptance within the scientific community. Id. at 593-95.

B. Summary Judgment Motions

The term " summary judgment" is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It " suggests a judicial process that is simple, abbreviated, and inexpensive," while in reality, the process is complicated, time-consuming, and expensive.[5] Id. at 273, 281. The complexity of the process, however, reflects the " complexity of law and life." Id. at 281. " Since the constitutional right to jury trial is at stake," judges must engage in a " paper-intensive and often tedious" process to " assiduously avoid deciding disputed facts or inferences" in a quest to determine whether a record contains genuine factual disputes that necessitate a trial. Id. at 281-82. Despite the seeming inaptness of the name, and the desire for some in the plaintiffs' bar to be rid of it, the summary judgment process is well-accepted and appears " here to stay." [6] Id. at 281. Indeed, " judges are duty-bound to

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resolve legal disputes, no matter how close the call." Id ...

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