While the Eighth Circuit Court of Appeals has affirmed a $225,000 jury award to the estate of a woman who developed osteonecrosis of the jaw (ONJ) allegedly as a result of taking two drugs prescribed by her physician, it remanded the matter for re-calcu-lation of the costs awarded because they were associated with depositions taken for use in more than 650 cases consolidated in a multidistrict litigation (MDL). Winter v. Novartis Pharms. Corp., Nos. 12-3121, -3409 (8th Cir., decided January 9, 2014).

The injured woman’s physician prescribed one of the drugs before ONJ warnings were included in the package inserts. Because he testified that he did not read package inserts before prescribing drugs, the defendant argued that his failure to do so constituted an intervening, independent and sole proximate cause of the plaintiff’s injuries. The court disagreed, finding that the evidence showed other ways that information about the ONJ risk could have reached the physician. The court also noted that the company’s sales representative had been instructed not to discuss ONJ with physicians before the drug was prescribed to the plaintiff and raised the matter with the physician some 13 months after she had started taking the drugs and her ONJ had been triggered.

The injured woman’s physician prescribed one of the drugs before ONJ warnings were included in the package inserts. Because he testified that he did not read package inserts before prescribing drugs, the defendant argued that his failure to do so constituted an intervening, independent and sole proximate cause of the plaintiff’s injuries. The court disagreed, finding that the evidence showed other ways that information about the ONJ risk could have reached the physician.

The court also rejected the defendant’s claim that New Jersey’s punitive damages law should have been applied to the matter, because it is headquartered there. Although the jury did not award punitive damages, the company claimed that puni- tive damages evidence, permitted under Missouri law, “impermissibly tainted the jury’s consideration of liability and compensatory damages.” The court determined that the district court did not err in holding that Missouri had the “most significant relationship” to the punitive damages claim, because the injury occurred in that state, and “Missouri is where Novartis’s sales representatives failed to warn Baldwin’s doctor, making it also, at least in part, the state of the conduct causing the injury.”

The court agreed with the defendant that the district court erred in awarding litigation-wide costs of more than $88,000 to an individual plaintiff. In this regard, the court stated, “Where litigation costs are incurred in connection with more than one proceeding, the district court should allocate the costs.” Here, the plaintiff sought transcription costs for 18 depositions that were used throughout the consolidated MDL proceedings.