We mentioned last Friday that the defense win in the Bessemer Aredia case had been affirmed. We didn’t have time to gloat then, but we do now − at least a little. The affirmance, which won’t be published, is now online here: Bessemer v. Novartis Pharmaceuticals Corp., 2012 WL 2120777 (N.J. Super .A.D. June 13, 2012) (per curiam). There isn’t much to this opinion; it’s basically an appellate endorsement of two of the trial court’s (Judge Jessica Mayer) opinions:
[W]e affirm substantially on the basis of the well-considered and thorough opinions of Judge Mayer, which are well supported by the evidence and legal precedent.
The two prior opinions in question are: Bessemer v. Novartis Pharmaceuticals Corp., 2010 WL 6052544 (N.J. Super. L.D. Nov. 12, 2010) (denying post trial motions), and Bessemer v. Novartis Pharmaceuticals Corp., 2010 WL 6257855 (N.J. Super. L.D. April 30, 2010) (granting partial summary judgment). Now that they’ve been confirmed as "well-considered and thorough," what we’d most like to see is these two opinions (particularly the summary judgment order) get published in the A.2d reporter − so Westlaw would give them page numbers, for one thing.
So what exactly did the Appellate Division endorse last week? Here’s a synopsis:
The post-trial motion decision (2010 WL 6052544) in Bessemer held:
- The testimony by plaintiff’s prescribing oncologist at trial that called causation into question was in response to plaintiff’s own question, and plaintiff, having asked the question, had to live with the answer.
- Plaintiff failed to place other objections to videotape deposition testimony on the record, and thus waived them.
- If plaintiff did not like the prescriber’s videotape testimony, she could have called him as a live witness, but failed to do so.
- The jury was told that the defendant paid the travel expenses for the treating physician who testified that plaintiff likely didn’t have the disease condition she claimed she did.
- The court acted properly in letting both sides speak informally to plaintiff’s treating physicians.
- The total number of patients with similar conditions (at least to what plaintiff claimed she had) was properly excluded as irrelevant and prejudicial, and in any event the jury never reached causation, having found for the defendant on defect.
If we had page numbers, we’d use them, but we don’t so we can’t.
Except for the informal interviews point − to which the Appellate Division spoke in its recent decision in the mesh litigation − these issues are very case specific and, frankly, seem rather makeweight.
The more important of the two Bessemer trial court decisions was its summary judgment decision (2010 WL 6257855). That opinion held:
- Plaintiff presented enough evidence of her warning theory to survive summary judgment (that’s why there was a trial).
- Defendant was under no obligation to warn a non-prescribing physician in a different field (dentistry) of the risks of what was a drug prescribed in the treatment of cancer.
- Plaintiff presented enough evidence of causation for her warning theory to survive summary judgment.
- Aredia was FDA approved, so punitive damages could not be assessed.
- Plaintiff failed to establish a design defect claim.
- There is no independent cause of action for implied warranty.
Of these rulings, the most important concern warnings to non-prescribing physicians in other fields and punitive damages. While we don’t like everything in this opinion, we think it deserves to be published.