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Gilliland v. Novartis Pharms. Corp.

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

July 28, 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 is Novartis Pharmaceuticals Corporation's (" Novartis" ) Motion To Find That Punitive Damages Are Unavailable (" Motion" ),[1] filed May 15, 2014. Clerk's No. 82. On June 17, 2014, Denise Gilliland (" Gilliland" ) filed a response. Clerk's No. 94. Novartis replied on July 1, 2014. Clerk's No. 103. The Motion is fully submitted.[2]


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 this procedure. 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,

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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.


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 resolve legal disputes, no matter how close the call." Id. at 287.

Federal Rule of Civil Procedure 56(a) provides that " [a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." " [S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n.5 (8th Cir. 1975)). The purpose of summary judgment is not " to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). Rather, it is designed to avoid " useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir. 1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir. 1975)). Summary judgment can be entered against a party if that party

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fails to make a showing sufficient to establish the existence of an element essential to its case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir. 1987) (" Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact." ) (citing Weightwatchers of Quebec, Ltd. v. Weightwatchers Int'l, Inc., 398 F.Supp. 1047, 1055 (E.D.N.Y. 1975)).

In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 248. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.; Celotex, 477 U.S. at 322-23; Anderson, 477 U.S. at 257. " [T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. An issue is " genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248. " As to materiality, the substantive law will identify which facts are material . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id.

Courts do not treat summary judgment as if it were a paper trial. Therefore, a " district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In a motion for summary judgment, the Court's job is only to decide, based on the evidentiary record that accompanies the moving and resistance filings of the parties, whether there really is any material dispute of fact that still requires ...

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