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Schenk v. Novartis Pharmaceuticals Corporation

United States District Court, D. Arizona

July 23, 2014

Paul Schenk, et al., Plaintiffs,
v.
Novartis Pharmaceuticals Corporation, Defendant.

ORDER

NEIL V. WAKE, District Judge.

Before the Court is Defendant Novartis Pharmaceuticals' First Motion to Strike Expert Report of Robert Marx, D.D.S. (Doc. 39), Plaintiffs' Response (Doc. 42), and Defendant's Reply (Doc. 44). Novartis made an error in uploading the exhibits supporting its First Motion to Strike (Doc. 39) and failed to include a copy of the report challenged by its First Motion. When the Court requested a copy of the missing report, Novartis instead chose to file a Second Motion to Strike Expert Report of Robert Marx, D.D.S. (Doc. 75). The Second Motion (Doc. 75) is identical to the First Motion (Doc. 39), except that the correct exhibits are attached.

Before the Court is also Novartis' Motion to Exclude Dr. Robert Marx's Specific Causation Opinions (Doc. 60). This Motion (Doc. 60) is substantially similar to the First Motion to Strike Expert Report of Robert Marx, D.D.S. (Doc. 39), as it also challenges whether Dr. Marx has supplied an adequate basis for his expert causation opinion. Although the Motion to Exclude Dr. Robert Marx's Specific Causation Opinions (Doc. 60) is better reasoned than Novartis' First Motion to Strike Expert Report (Doc. 39), the motions address the same core issue, and the Court would have been better served if Novartis had taken the time to consolidate its arguments against Dr. Marx's case-specific testimony into a single motion.

Despite the overlap, Novartis' First Motion to Strike Expert Report of Robert Marx, D.D.S. (Doc. 39) and its Motion to Exclude Dr. Robert Marx's Specific Causation Opinions (Doc. 60) will be granted. Novartis' Second Motion to Strike Expert Report of Robert Marx, D.D.S (Doc. 75) will be denied as unnecessary and duplicative.

I. FACTS

a. Background

This action is one of over eight hundred product liability suits currently pending against Novartis Pharmaceuticals its products Aredia and Zometa. Aredia and Zometa are bisphosphonate drugs primarily indicated for the prevention of bone fractures in patients with hypercalcemia of malignancy in cancers that have metastasized to the bone. All pending cases concern Novartis' alleged failure to warn of the risk of osteonecrosis of the jaw associated with use of the two drugs. This action differs from the other cases filed because Plaintiff Paul Schenk was not prescribed Aredia and Zometa for metastasized cancer, but was instead prescribed the drugs off-label to prevent fractures associated with a rare genetic disease: osteogenesis imperfecta. This action is brought against Novartis by Paul Schenk and his wife.

b. Dr. Marx's Expert Report

The Schenks served disclosures for six non-retained experts, including Dr. Robert Marx, on the final date for such disclosures, January 31, 2014. Some disclosures were general, such as the statement that they planned to rely on expert reports submitted in the multi-district litigation from which this case was remanded. See In re: Aredia and Zometa Prods. Liab. Litig., Dck. No. 3:06-MD-1760, pending in Middle District of Tennessee. Two disclosures were specific to Dr. Marx. One was for a case-wide report served in the class action stage of the multi-district litigation dated October 6, 2008. Another was for a case-specific causation report which discussed Mr. Schenk's medical records and his genetic condition. The case-specific report was dated January 29, 2014.

On February 4, Novartis informed the Plaintiffs that Dr. Marx's case-specific report was inadequate and that Novartis would move to strike it. In response, the Plaintiffs immediately submitted a second case-specific report from Dr. Marx, also dated January 29, 2014.

Novartis also objected to the second report and proceeded to file this First Motion to Strike Expert Report of Robert Marx, D.D.S. (Doc. 39), alleging that neither Dr. Marx's first case-specific report nor his second, revised report complies with the Federal Rules of Civil Procedure. Novartis' First Motion to Strike (Doc. 39) seeks only to exclude Dr. Marx's case-specific reports. It does not seek to exclude Dr. Marx's more generalized, case-wide opinions in other reports.

Dr. Marx's First Report (Doc. 39, Exh. 2) is a half-page letter stating that he has reviewed medical records and the deposition testimony listed the sheets attached to his letter. The letter states that after careful review of the record, combined with his knowledge of bisphosphonate bone toxicity, experience in over 350 cases, and his consideration of other possible causes of Mr. Schenk's jaw problems, he has concluded that Aredia and Zometa were the root cause of Mr. Schenk's osteonecrosis of the jaw, and that the osteonecrosis was not the result of Mr. Schenk's genetic condition or any other cause. No other details, such as what 350 cases were reviewed or what specific facts or information led to his conclusion, are provided in the letter. The letter also states that Dr. Marx has not yet had a chance to review copies of Mr. Schenk's "many sinus and jaw CT scans that were accomplished as well as long bone films" and that he reserves the right to amend the report after reviewing such films. (Doc. 39, Exh. 2).

Attached to the letter is a single page with listings which appear ...


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