Duane Luttrell v. Novartis Pharmaceuticals Corp.

FILED
NOT FOR PUBLICATION FEB 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE E. LUTTRELL, No. 12-35893
Plaintiff - Appellant, D.C. No. 2:07-cv-03015-TOR
v.
MEMORANDUM*
NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted February 3, 2014
Seattle, Washington
Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.
Appellant Duane Luttrell appeals the district court’s order granting summary
judgment to Novartis Pharmaceuticals Corporation (“Novartis”). We review a
grant of summary judgment de novo. Lust By and Through Lust v. Merrell Dow
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pharm., Inc., 89 F.3d 594, 596 (9th Cir. 1996). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Washington products liability law requires that a plaintiff show proximate
cause, composed of both cause in fact and legal causation. Hartley v. State, 698
P.2d 77, 82–83 (Wash. 1985). Cause in fact is lacking when an injury would have
occurred regardless of the defendant’s conduct. Davis v. Globe Mach. Mfg. Co.,
684 P.2d 692, 696 (Wash. 1984). When a plaintiff brings an insufficient warning
claim against a drug company, the learned intermediary doctrine requires a
showing that the prescribing physician, not the patient, would have taken “a
different course of action” if better warnings had been issued. Laisure-Radke v.
Par Pharm., Inc., 426 F. Supp. 2d 1163, 1174 (W.D. Wash. 2006); see Adams v.
Synthes Spine Co., 298 F.3d 1114, 1117 (9th Cir. 2002); Terhune v. A.H. Robins,
Co., 577 P.2d 975, 977–78 (Wash. 1978).
Although a jury normally decides a question of causation, it may be decided
by a judge when “reasonable minds could reach but one conclusion.” Ruff v. Cnty.
of King, 887 P.2d 886, 889 (Wash. 1995). Here, even assuming that Novartis’
warnings were inadequate, we conclude that the district court properly granted
summary judgment to Novartis because Luttrell cannot prove proximate cause.
Luttrell contends that either he or his doctor would have taken a different course of
2
action if Novartis had issued better warnings regarding the risks of developing
bisphosphonate-related osteonecrosis of the jaw (“BRONJ”). Luttrell did develop
osteonecrosis of the jaw (“ONJ”) after taking bisphosphonates as part of his
treatment for myeloma. However, in our view, Luttrell cannot prove proximate
cause because the prescribing physician resumed Luttrell’s bisphosphonate
treatment after his development of ONJ and after the filing of this lawsuit. The
record makes clear that the doctor understood the connection between
bisphosphonates and the risk of osteonecrosis of the jaw, and that in his medical
opinion the benefits of the treatment for the patient outweighed those risks.1
AFFIRMED.
1
Because the failure of Luttrell to show proximate cause is dispositive, we
need not reach the issue of the district court’s exclusion of expert testimony.
3