The U.S. Court of Appeals for the Sixth Circuit has given a woman who lost part of her jaw another chance to prosecute a products liability case against Novartis Pharmaceuticals Corporation.
Plaintiff Charolette Payne and her spouse allege that Novartis failed to warn her physicians that Aredia and Zometa could cause serious damage to patients’ jawbones.
Judge Jane Branstetter Stranch, writing for the panel, said that, under Tennessee law, Payne’s failure to warn claim should not have been dismissed at the summary judgment stage. Read the Sixth Circuit ruling here.
The district court determined that the plaintiffs could not show that Novartis had failed to warn Payne’s doctor because he “would not have been meaningfully changed his prescribing practice had he been aware of the risk of the drugs,” according to the appellate court opinion.
The appellate court disagreed, ruling that the issue of causation is for a jury to decide. “Viewed in the light most favorable to the Paynes, a factfinder could infer that, had he known the risk, [the prescribing physician’] would have warned Payne about osteonecrosis of the jaw] before starting her on Aredia or Zometa and Payne would have then refused to take the drugs,” Stranch said.
Payne’s prescribing physician indicated, if he had been provided different warnings, he would have informed Payne that Aredia and Zometa could destroy her jawbone.
And Payne indicated she would not have taken the bisphosphonate drugs if she had known of that risk to her jaw.
Payne received the drugs as part of her treatment during her fight with breast cancer.
Amaris Elliott-Engel contributes to law.com.