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Messick v. Novartis Pharmaceuticals Corp.

United States Court of Appeals, Ninth Circuit

April 4, 2014

LINDA MESSICK, Plaintiff-Appellant,
v.
NOVARTIS PHARMACEUTICALS CORPORATION, Defendant-Appellee

Argued and Submitted, Seattle, Washington: February 3, 2014.

Page 1194

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:12-cv-00693-SI. Susan Illston, Senior District Judge, Presiding.

Martin N. Buchanan (argued), Law Offices of Martin N. Buchanan, San Diego, California; John A. Girardi, Girardi Keese, Los Angeles, California; John J. Vecchione, Valad & Vecchione, PC, Fairfax, Virginia, for Plaintiff-Appellant.

Frank Leone (argued), Katharine R. Latimer, Rebecca A. Womeldorf, Hollingsworth LLP, Washington, D.C., for Defendant-Appellee.

Before: Raymond C. Fisher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Gould.

OPINION

Page 1195

GOULD, Circuit Judge:

We consider when a district court should exclude expert testimony at trial. Linda Messick contends that the district court erred by excluding the causation testimony offered by her expert, Dr. Richard Jackson, when it found the testimony to be irrelevant and unreliable. Examining the district court's exclusion of expert testimony for an abuse of discretion, we conclude that Dr. Jackson's testimony was improperly excluded, and we reverse and remand.

I

In August 2000, Linda Messick was diagnosed with breast cancer. In response to her development of osteoporosis after chemotherapy and steroid therapy, Messick was treated with the drug Zometa from May 7, 2002 to November 14, 2002. Zometa is a bisphosphonate, a class of drug commonly used to treat multiple myeloma. Such drugs are used to reduce or eliminate the possibility of skeletal-related degeneration and injuries to which cancer patients are particularly susceptible. Novartis Pharmaceuticals Corporation (" Novartis" ) produces Zometa, which was approved by the FDA in 2001 and 2002 for treating hypercalcemia of malignancy and other conditions.

After Messick encountered several dental problems, two oral specialists examined her in November 2005 and discovered osteonecrosis near three of her teeth. Both doctors treated her under the assumption that she was suffering from bisphosphonate-related osteonecrosis of the jaw (" BRONJ" ), a condition recognized by the American Association of Oral and Maxillofacial Surgeons (" AAOMS" ). According to the AAOMS, a BRONJ diagnosis is appropriate for patients with (1) current or previous treatment with bisphosphonates, (2) exposed bone in the maxillofacial region that has lasted for more than eight weeks, and (3) no history of radiation therapy to the jaw. Other potential causes of osteonecrosis of the jaw (" ONJ" ) may include: peridontal and dental disease, osteomyelitis, corticosteroid use, cancer, radiation therapy, compromised immunity, and trauma.

Page 1196

While ONJ may be caused by many factors, the AAOMS's diagnostic definition of BRONJ sets out its unique features: it lasts more than eight weeks and is not related to radiation therapy. Messick's BRONJ healed between March and October 2008, about three years after diagnosis. She and her husband brought suit against Novartis for strict products liability, negligent ...


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