In Bock v. Novartis Pharmaceuticals Corp., Case No. 15-3696, 2016 WL 5799663 (3d Cir. Oct. 5, 2016), the Third Circuit soundly rejected plaintiff's argument that summary judgment on learned intermediary grounds was premature because it preceded introduction of expert testimony on warnings.

The case involved Aredia and Zometa, two bisphosphonates which treat certain cancer complications. Studies in 2003 and 2004 showed a possible link between biophosphonates and osteonecrosis of the jaw (ONJ) in patients who underwent invasive dental procedures while taking the drugs. In light of these studies, in 2004 and 2005, Novartis sent "Dear Doctor" letters to the medical community describing changes to the drugs' package inserts.

Plaintiff Bock claimed to suffer from ONJ and brought negligent failure to warn claims under Pennsylvania law. However, his physicians testified at deposition that they were aware of the risk of ONJ for patients on Aredia and Zometa, but that biophosphonates were the standard of care for patients like Mr. Bock and they would nonetheless still prescribe biophosphonates to Mr. Bock because the benefits of the drugs outweighed the risk. Recognizing the risk of ONJ, Mr. Bock's hematologist testified that he told Mr. Bock to inform him right away if he had issues with his teeth. Despite his physician's instruction, Mr. Bock underwent an invasive tooth extraction without informing his physicians. Mr. Bock developed ONJ, and filed suit.

On appeal from the District Court's grant of summary judgment to the defendant based on this testimony, the Third Circuit rejected Mr. Bock's argument that he should have been permitted to adduce expert testimony on warnings. Plaintiff argued that because summary judgment was granted before expert testimony on the contents of the warnings was taken, there was no way to tell what the doctors would have done had they been presented with a supposedly adequate warning. The Third Circuit disagreed. It reasoned that, because the doctors testified that they would prescribe the same treatment for the plaintiff today, the plaintiff could only prevail if there was some continuing deficiency in the labeling. Yet, under Pennsylvania law, "[a] warning should not be held improper because of subsequent revelations." Id. at *6 (citing cases). Speculation that expert testimony would "reveal that the risks of bisphosphonate treatment are actually greater than they are presently known" was insufficient to defeat summary judgment.

This case reaffirms that defendants may in appropriate cases move for early summary judgment on the basis of prescribing doctor testimony without waiting for full expert discovery to conclude.