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Christopher Rutz v. Novartis Pharmaceuticals

December 17, 2012


The opinion of the court was delivered by: Reagan, District Judge:


I. Introduction

Plaintiff Christopher Rutz*fn1 brings this strict liability action against Defendant

Novartis Pharmaceuticals Corporation (NPC), alleging that Carolyn Rutz (Rutz), developed osteonecrosis of the jaw (ONJ) as a result of Zometa infusions prescribed by her oncologist to treat her breast cancer and to prevent the effects of skeletal-related events.*fn2 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, NPC moves the Court to grant summary judgment on all claims (Doc. 86). NPC contends that: (1) Plaintiff has no admissible evidence that Rutz developed the injury alleged in this case -- bisphosphonate-related osteonecrosis of the jaw (BRONJ); (2) Plaintiff has no evidence that NPC's warnings were inadequate; (3) even if Plaintiff could prove that NPC's warnings were inadequate, he has no evidence that a different warning would have changed the outcome of Rutz's alleged injuries.

Plaintiff responds that NPC's motion should be denied because a jury could find that Zometa caused Rutz's injury based on Plaintiff's competent medical evidence of causation. Plaintiff states that Dr. Alan Schwimmer and Dr. Michael Hesterberg, oral and maxillofacial surgeons, testified that Zometa caused Rutz's ONJ. Plaintiff submits that he can show that Zometa's warning was inadequate and that an adequate warning about BRONJ could have changed the outcome of Rutz's injuries. Plaintiff contends that he can prove that Dr. Guillermo Rodriguez, Rutz's oncologist, was not a learned intermediary and, consequently, there is a "heeding presumption" that Dr. Rodriguez would have heeded an adequate warning about ONJ. Moreover, according to Plaintiff, there is circumstantial evidence that Dr. Rodriguez and Rutz would have acted differently with an adequate warning about ONJ.

NPC's motion is fully briefed, and oral argument was held on November 9, 2012. Analysis begins with reference to the standard governing this Court's review of the summary judgment motion.

II. Legal standard

Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010).

When the non-moving party bears the burden of proof, though, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 595 F.3d at 695. To survive summary judgment, the non-movant must provide admissible evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

In deciding a summary judgment motion, the court may not evaluate the weight of the evidence, judge the credibility of witnesses, or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512, citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). As succinctly stated by the Seventh Circuit Court of Appeals, "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010, quoting Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).

Stated another way, summary judgment is the "put up or shut up" moment in litigation -- the point at which the non-movant must marshal and present to the court the admissible evidence which he contends will prove his case. Goodman v. National Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) (citations omitted). With these principles in mind, the Court turns to the motion in the instant case.

III. Discussion

A. Factual ...

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