Tim Howard’s performance in the Americans’ World Cup game against Belgium was one for the ages.  He saved more shots than any goalie had in the World Cup in almost fifty years.  But, he did let two goals in.  Neither were his fault but that did happen.  A reminder that even an incredible defense can be beaten.  Recently, plaintiffs’ lawyers in the Aredia/Zomeda litigation attempted to beat the learned intermediary defense, despite unequivocal testimony from the prescribing physician that a different warning would not have changed his prescribing the medication.  Fortunately, the Alabama federal court concluded that given this testimony, the learned intermediary doctrine precluded the claim.  Garrison v. Novartis Pharm. Corp., 2014 WL 2968510 (M.D. Ala. July 2, 2014).  The plaintiff’s arguments, and the court’s rejection of them, are worth a look.

In brief, the plaintiff claimed ingestion of Aredia/Zomeda caused her to sufferosteonecrosis of the jaw (“ONJ”) and that Novartis failed to warn of that risk.  The crippling blow to plaintiff’s warning claim was her prescribing physician’s (Dr. Morrison) declaration that he still would have prescribed the drugs – even with a strong warning of ONJ – because the benefit (i.e., the prevention of bone deterioration, especially in [plaintiff’s] already vulnerable spine) outweighed the risk that she might develop ONJ.   Cut and dry summary judgment, right?  The plaintiff argued it was not so simple for two reasons.

First, she argued her prescriber’s credibility was at issue and a matter for the jury to resolve.  Specifically, she claimed the fact his medical license was revoked rendered his declaration (and deposition testimony) dubious and a jury issue.  Second, the plaintiff argued that only “self-disserving” testimony is sufficient to warrant summary judgment in the favor of the defendant.  According to the plaintiff, since the prescriber’s testimony was not entirely against his own interest, it should be disregarded at the summary judgment stage.  She cited cases that the court found supported the proposition that unless a doctor’s testimony is wholly self-disserving, a jury should be allowed to assess the credibility of his testimony. Nevertheless, the court was not persuaded.

The court granted summary judgment holding that “Eleventh Circuit authority supports Novartis’s position that it does not matter that Dr. Morrison has a dubious professional record and that a jury might be persuaded to discredit his testimony.”  Id. at *8.  According to the Court, “The court must ask whether [the prescriber’s] decision to prescribe [Aredia] to [plaintiff] ultimately hinged on the information (accurate or inaccurate) that he obtained from [Novartis] and if not, whether [plaintiff] has evidence to rebut [the prescriber].” Id.

The court concluded that the prescriber’s unambiguous testimony “that an earlier warning would not have affected his decision to prescribe bisphosphonates,” meant that there was not a genuine dispute of material fact.  Id.

This opinion is another decision in a long line of cases around the country granting summary judgment where the prescribing physician unambiguously testified that a different warning would not have changed his or her prescribing decision.  Importantly, the court rejected plaintiff’s argument that the credibility of the physician was a jury issue, and that only “self-disserving” testimony is sufficient at the summary judgment stage.  Like Tim Howard, the learned intermediary defense can occasionally be beaten.  But not this time.