United States District Court, D. Arizona
For John D'Agnese, Barbara D'Agnese, Plaintiffs: John J Vecchione, LEAD ATTORNEY, Valad & Vecchione PLLC, Fairfax, VA; Martin H Mathers, LEAD ATTORNEY, Martin H Mathers PC, Phoenix, AZ.
For Novartis Pharmaceuticals Corporation, Defendant: Katharine R Latimer, LEAD ATTORNEY, Matthew John Malinowski, Rachel Elizabeth Paul, Hollingsworth LLP, Washington, DC; Robert Eric Johnston, Hollingsworth LLP - Washington, DC, Washington, DC; Thomas M Hoidal, Law Office of Thomas M Hoidal PLC, Phoenix, AZ.
James A. Teilborg, Senior United States District Judge.
Pending before the Court are: (1) Defendant's Motion for Summary Judgment on Specific Medical Causation (Doc. 110); (2) Defendant's Motion for Summary Judgment on Inadequate Warnings and Remaining Claims (Doc. 112); and (3) Defendant's Motion for Summary Judgment on Plaintiffs' Punitive Damages Claim (Doc. 114). The Court now rules on the Motions.
The Court previously set forth the Background of this case as follows:
This case is part of " Wave III" of a multidistrict litigation in the United States District Court for the Middle District of Tennessee (the " MDL Court" ). In their Second Amended Complaint (Doc. 1), Plaintiffs allege that Defendant Novartis Pharmaceuticals Corporation (" Defendant" or " NPC" ) produces and markets the drugs Aredia® and Zometa® .
Plaintiffs allege that Aredia® and Zometa® are classified as bisphosphonates and are prescribed for the management of metastatic disease to the bone and other bone diseases and conditions. Plaintiffs allege that Aredia® was the first generation version of Zometa® . Plaintiffs further allege that these drugs cause and precipitate osteonecrosis of the jaw or maxilla bone.
Plaintiffs allege that osteonecrosis is bone death of an area of the bone, which is a permanently disfiguring and painful condition, which can result in the complete loss of the patient's jaw bone.
Plaintiff John D'Agnese (" Mr. D'Agnese" ) used Aredia® and Zometa® to treat multiple myeloma bone disease, a disease that Mr. D'Agnese was diagnosed with in 1995. Mr. D'Agnese was also prescribed chemotherapy with corticosteroids, radiation treatments, and two stem cell implants to treat the multiple myeloma. Plaintiffs allege that Mr. D'Agnese suffered osteonecrosis of the jaw (" ONJ" )  as a result of taking Aredia® and Zometa® . Plaintiffs assert that Mr. D'Agnese was given forty-seven doses of Aredia® from December 3, 1998 to May 28, 2002 and forty-two doses of Zometa® from June 28, 2002 to October 11, 2005.
After completion of pretrial proceedings, this case was transferred from the MDL Court to this Court.
(Doc. 139); D'Agnese v. Novartis Pharmaceuticals Corp., 2013 WL 321773, at *1 (D. Ariz. Jan. 28, 2013).
In their Second Amended Complaint, Plaintiffs assert the following claims against Defendant: (1) Strict Liability (Count I); (2) Negligence--Negligent Manufacture (Count II); (3) Negligence--Failure to Warn (Count III); (4) Breach of Express Warranty (Count IV); (5) Breach of Implied Warranty (Count V); and (6) Loss of Consortium (Count VI).
Defendant now moves for summary judgment: (1) on all of Plaintiffs' claims based on Plaintiffs' inability to prove specific medical causation; (2) on all of Plaintiffs' inadequate warning claims; and (3) on all of Plaintiffs' claims for punitive damages.
Plaintiffs filed responses to the Motions for Summary Judgment. In their Responses, Plaintiffs support their arguments with references to the " Declaration of John J. Vecchione, Esq. In Support of Plaintiffs' Opposition to Defendant's Motions to exclude Plaintiffs' Experts and for Summary Judgment in the D'Agnese Case." (Doc. 36) (the " Vecchione Declaration" ). This Declaration is nine pages and the exhibits attached to it exceed 1,500 pages. Although this " Declaration" is not contemplated by the Court's local rules as responsive to a Motion for Summary Judgment,  it is in the Court's Record and, to the extent it was cited by Plaintiffs in their Responses to the Motions for Summary Judgment, the Court has considered it in ruling on the Motions for Summary Judgment.
Plaintiffs also filed " Plaintiffs' Responses to Counter-Statement of Undisputed Facts in Opposition to Defendant's Statement of Undisputed Facts in Support of Motion for Summary Judgment in the D'Agnese Case." (Doc. 126) (" Plaintiffs' Counter-Statement of Facts" ). Plaintiffs' Counter-Statement of Facts is eighty-five pages and is in the Court's Record. This document is not referenced or cited to in any of Plaintiffs' Responses to the Motions for Summary Judgment.
Plaintiffs' Counter-Statement of Facts begins with the following " General Response," to Defendant's Motions for Summary Judgment:
This case involves claims that Novartis' bisphosphonate drugs Aredia ® and Zometa® cause a new type of devastating
jaw disease: bisphosphonate induced osteonecrosis of the jaw (" BIONJ" ). Documents referenced herein are attached to the Declaration of John J. Vecchione in the D'Agnese case (" Vecchione D'Agnese Decl." ) (Docket No. 36) filed contemporaneously herewith and are incorporated by reference. Plaintiffs also incorporate by reference the oppositions filed from time to time by the Plaintiffs' Steering Committee (" PSC" ) in MDL-1760 in opposition to Novartis' various motions for summary judgment regarding causation and warnings, including without limitation: Plaintiffs' Response to Novartis' Statement of Undisputed Facts in Support of Novartis' Motion for Summary Judgment on the Adequacy of Aredia® and Zometa® Warnings filed on 7/1/2009 (DE 2616) and as corrected 7/13/2009 (DE 2639); Plaintiffs' Opposition to Novartis' Motion for Summary Judgment on the Adequacy of Aredia® and Zometa® Warnings filed on 7/1/2009 (DE 2614); Plaintiffs' Memorandum In Opposition To Novartis' Motion For Summary Judgment Based On Failure Of General Causation Proof Under Daubert filed on 7/2/2009 (DE 2633) and as corrected 7/3/2009 (DE 2635); and the Second Declaration of Robert Germany filed on 6/28/2009 (DE 2465). Plaintiffs also incorporate by reference the statements of fact in the other Valad & Vecchione cases where applicable.
FN1 For example, Plaintiffs adopt the prior responses on whether Novartis' drugs cause ONJ and Novartis' asserted list of " risk factors" . See Deposition of Wayne Ray, Ph.D., Vol. I, 172:13-17 (bisphosphonates only risk factor for ONJ); 174:4-7 (dental extractions only cause ONJ in bisphosphonate users); 219:13-220:11 (cancer not a risk factor); 268:19-269:15 (you take away the bisphosphonate you take away the risk) (Feb. 20, 2009) (attached to the Vecchione D'Agnese Decl. as Exhibit 32) and Deposition of Wayne Ray, Ph.D., Vol. II, 505:20-506:18 (corticosteroids not a true risk factor) (Feb. 21, 2009) (attached to the Vecchione D'Agnese Decl. as Exhibit 33).
Plaintiffs adopt by reference the Opposition Statement of Facts Filed by the PSC in Response to Motions for Summary Judgment or to exclude case wide experts as to all Wave I-A cases, Wave I-B cases, Wave I-C, and Wave II cases. Similarly, again for emphasis and without limitation, the Second Declaration of Robert Germany is explicitly incorporated herein.
(Doc. 126 at 2-3) (emphasis added).
Aside from the Vecchione Declaration, none of the other documents referenced are in this Court's Record. It is entirely unclear to the Court why Plaintiffs believe they may " incorporate by reference" numerous other documents that are not in this Court's Record in this case.  Plaintiffs appear to expect the Court to locate and then scour various other documents not in the Record and to attempt to determine why they are relevant to the issues in the D'Agnese case, and to guess at why they may apply to this case. There is no authority for this type of incorporation. The Court can see no other purpose to incorporating all other responses to other motions for summary judgment, oppositions to statements of facts in support of other motions for summary judgment, and other declarations filed in support of responses to summary judgment filed in other cases that are not before this Court, except to confuse the issues that are currently before this Court. This is completely unacceptable and has served no other purpose than to needlessly complicate the
Court's ability to rule on the motions pending before it.
Further, this Court has previously informed Plaintiffs that such incorporation by reference is not permitted:
Plaintiffs filed one Response to Defendant's Daubert motions regarding Dr. Marx, Dr. Fletcher, Dr. Ray, Dr. Skubitz, and Dr. Vogel. In that Response, Plaintiffs attempt to " incorporate by reference" " the entirety of the Daubert opposition briefs and all exhibits filed in [the MDL case] in the 'Wave I-A' cases, filed on September 1, 2010, in the 'Wave I-B' cases, filed on November 22, 2010 in the 'Wave I-C' cases, filed on June 20, 2011 in the 'Wave II' cases, filed on November 30, 2011 in the Wave 'III' cases filed on September 16, 2012 in the Wave 'IV' cases, and oppose [Defendant's] current motion to exclude these witnesses for those and the following reasons." (Doc. 104 at 2). Plaintiffs have not attached ...