Esposito et al v. Novartis Pharmaceuticals Corporation
Filing
22
MEMORANDUM AND ORDER denying 13 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 9/18/2015. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
NOVARTIS PHARMACEUTICALS
)
CORPORATION,
)
)
Defendant.
)
___________________________________)
CYNTHIA L. ESPOSITO,
Individually and as the
Executrix of the Estate of
Roselyn Esposito, and BERNARDO
ESPOSITO,
C.A. No. 09-563 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiffs, Cynthia Esposito, executrix of the estate of
decedent
Roselyn
Esposito
(“Mrs.
Esposito”),
and
Bernardo
Esposito, Mrs. Esposito’s husband, have filed a personal injury
suit
against
Defendant
Novartis
Pharmaceuticals
Corporation
(“NPC”) for harm caused by the drug Zometa to Mrs. Esposito.
Before
the
Court
is
NPC’s
Motion
for
Summary
Judgment
No. 13), claiming that Plaintiffs’ suit is time-barred.
(ECF
For the
reasons set forth below, NPC’s Motion for Summary Judgment is
DENIED.
I.
Background
Plaintiffs’ claims stem from Mrs. Esposito’s development of
bisphosphonate-related osteonecrosis of the jaw (“BRONJ”) after
being treated with the drug Zometa, manufactured by NPC.
Zometa
is administered to counteract the effects of cancer that has
spread
to
the
bones.
(NPC’s
(“SUF”) ¶¶ 7-9, ECF No. 14.)
Esposito’s
premised
injuries
on
and
strict
Statement
of
Undisputed
Facts
Plaintiffs seek damages for Mrs.
her
husband’s
product
loss
liability,
of
consortium,
failure
to
warn,
negligence, and breach of warranty under Rhode Island law.
Plaintiffs
initially
court on October 23, 2009.
sued
NPC
in
Rhode
Island
Superior
NPC removed on diversity grounds,
after which the case was transferred to the Middle District of
Tennessee for coordinated or consolidated pretrial proceedings,
and then transferred back to this court (Electronic Transfer
Order, ECF No. 4).
NPC claims that Plaintiffs’ action is time-
barred because Plaintiffs failed to file suit within three years
after the cause of action accrued.
Because, NPC argues, the
undisputed facts show as a matter of law that Mrs. Esposito knew
or should have known that she had a cause of action against NPC
well
before
October
23,
2006,
judgment.
2
it
is
entitled
to
summary
II.
Facts 1
Mrs. Esposito was diagnosed with renal cell carcinoma and
underwent surgery to remove a kidney in July 2002.
30.)
In
September
2003,
she
was
diagnosed
with
(SUF ¶¶ 29metastatic
cancer after her clavicle was pathologically fractured.
¶ 31.)
(Id. at
She subsequently underwent various forms of radiation
treatment,
and
in
November
2003,
began
to
receive
Zometa
therapy, prescribed by her oncologist, Dr. Sundaresan Sambandam,
to slow the advancement of cancer-induced bone damage.
¶¶ 31-34.)
the
(Id. at
Dr. Sambandam testified that he first learned about
association
between
Zometa
(“ONJ”) at some point in 2004.
and
osteonecrosis
of
the
jaw
(Id. at ¶ 39.)
On August 19, 2005, Dr. E. Joseph Domingo, an oral surgeon,
extracted one of Mrs. Esposito’s teeth.
(Id. at ¶ 42.)
Domingo
aware
dental
testified
that
although
procedures
were
not
he
was
recommended
for
that
Dr.
invasive
patients
taking
Zometa due to the risk of ONJ, Mrs. Esposito had not informed
him of her ongoing Zometa treatment.
1
(Id. at ¶ 43.)
Mrs.
Plaintiffs do not dispute the facts submitted by NPC,
which are thus deemed admitted.
However, NPC disputes
Plaintiffs’ characterization of certain records and testimony.
The facts set forth here rely upon the records submitted by both
parties in support of their factual statements, rather than
Plaintiffs’ characterizations of those records.
3
Esposito’s Zometa treatment was discontinued in October 2005.
(Id. at ¶ 38.)
On February 22, 2006, Mrs. Esposito’s dentist, Dr. Kerry
Callery, extracted another tooth, and noted in subsequent visits
in late March that Mrs. Esposito’s bone was exposed at the site
of the extraction.
(Id. at ¶¶ 44-46.)
On April 3rd, another
dentist noted that Mrs. Esposito had exposed bone, but no pain
or swelling.
(Id. at ¶ 47; NPC Ex. 40, ECF No. 14-40; Domingo
Dep. Tr. 49:6-21, NPC Ex. 36, ECF No. 14-36.)
On April 11, 2006, Dr. Domingo saw Mrs. Esposito again and
found out that Mrs. Esposito was taking Zometa.
(SUF ¶ 48.)
He
recorded that he “[e]xplained to patient the effects of Zometa
on healing.”
(Id.)
osteonecrosis”
and
His noted “Assessment” was “Bisphosphonate
according
to
his
notes
and
testimony,
he
(Id.)
Dr.
told
Mrs.
prescribed Peridex, an antibacterial mouth rinse.
Domingo
testified
Esposito
Zometa
at
with
this
her
that
visit
he
or
condition
did
not
whether
at
that
recall
he
what
would
point,
he
have
that
he
correlated
“probably
wouldn’t” use the term “bisphosphonate osteonecrosis,” and as
for his “assessment,” he stated, “it looks like I was coming to
the conclusion that it was possible from the medication that she
had taken.”
(Id. at ¶ 50; Plaintiffs’ Statement of Undisputed
4
Facts (“PUF”) ¶¶ 25-27, ECF No. 16-26; Domingo Dep. Tr. 54:657:10, Pls. Ex. 22, ECF No. 16-22.)
On
May
26,
2006,
Mrs.
Esposito
visited
an
clinic complaining of a sore area on her tongue.
According
to
her
treating
physician’s
notes,
urgent
care
(SUF ¶ 51.)
Mrs.
Esposito
complained that her tongue was rubbing against the area where
her teeth had been pulled, and “said she had cancer and took
[some] medication and she said it had affected the bone in the
area.”
(Id.)
The physician determined that Mrs. Esposito had
an ulcer on her tongue, and wrote in her “Assessment and Plan”
that she would give Mrs. Esposito “Magic Mouth Wash.”
(NPC Ex.
41, ECF No. 14-41.)
On June 2, 2006, Dr. Sambandam, Mrs. Esposito’s oncologist,
made
positive
notes
on
Mrs.
Esposito’s
status
in
the
“Subjective” section of his report, but noted:
One thing she is bothered by is a couple of loose
teeth which she took out. Unfortunately after the
tooth has been taken out she has a tough time healing
the lesion.
Now she has osteonecrosis of the
mandible.
She has a dry area and an ulcer in the
tongue. . . . She has no other systemic symptoms
present. She has been having no pain or discomfort.
(SUF at ¶ 52; NPC Ex. 42, ECF No. 14-42.)
At Dr. Sambandam’s
deposition, although he agreed that the “Subjective” section of
his report is where he records what the patient reported, when
asked if he wrote this because Mrs. Esposito reported it to him,
5
he did not know, could not recall the conversation, and could
not recall whether he discussed ONJ with her.
¶ 11;
Sambandam
No. 16-21.)
Sambandam
In
Dep.
the
describes
Tr.
88:18-91:5,
“Objective”
“open
wounds
part
on
(SUF ¶ 53; PUF
Pls.
of
the
Ex.
his
left
21,
ECF
report,
Dr.
side
of
the
mandible,” and notes “[s]he really is looking good except for
this.”
(NPC Ex. 42, ECF No. 14-42.)
His “Assessment” states “I
am happy that everything else is looking good.”
(Id.)
On June 14, 2006, Dr. Sambandam saw Mrs. Esposito again,
and noted in the “Subjective” portion of his report that Mrs.
Esposito
“feels
overall
okay
except
for
a
problem
with
her
tongue and the short area of avascular necrosis of the mandible
irritating the lateral bottom of the tongue.”
Ex. 43, ECF No. 14-43.)
(SUF ¶ 54; NPC
He goes on to list his findings, the
majority of them positive, and writes in his plan that he would
“probably send her [to] Dr. VanDongen who has experience with
radiation induced avascular necrosis. . . . I think he is a good
resource who might be able to help us.” 2
(NPC Ex. 43, ECF No.
14-43.)
2
Plaintiffs assert, and Defendants dispute, that Dr.
Sambandam attributed the necrosis to radiation treatment.
Dr.
Sambandam’s testimony on this matter was inconclusive.
(See
Sambandam Dep. Tr. 109:5-113:14, Pls. Ex. 21, ECF No. 16-21.)
He stated: “We talked about everything.
You know, one of the
things was radiation.”
(Id. at 109:12-13.)
He explained, “we
6
On September 27, 2006, Dr. Sambandam again evaluated Mrs.
Esposito, and states in his report that she “has been treated in
the
past
with
Zometa
and
she
has
done
well
with
Unfortunately, she developed necrosis of the mandible.”
¶ 55.)
The
nothing
relating
“Objective
section
titled
to
Findings,”
“Subjective
Complaints,”
ONJ,
but
symptoms
are
where
Dr.
Sambandam
reports
it.
(SUF
mentions
described
that
in
Mrs.
Esposito “has tenderness in the left mandible near the angle of
the
mandible
where
infection there.
ECF
No.
14-29.)
she
has
a
lesion
present.
I put her on antibiotics now.”
Dr.
Sambandam
testified
that
She
has
an
(NPC Ex. 29,
he
could
not
recall what Mrs. Esposito told him at this visit, that there are
several possible reasons people develop osteonecrosis, and that
he
thought
Zometa
was
a
“contributor,”
but
did
not
form
an
opinion “to a reasonable degree of medical certainty” as to the
cause of Mrs. Esposito’s condition. (Sambandam Dep. Tr. 92:995:3, Pls. Ex. 21, ECF No. 16-21.)
know more radiation than Zometa accumulative, so [Dr. VanDongen]
has a lot more experience with the avascular necrosis.
So
that’s the reason why I used the word ‘avascular’ necrosis,
because that’s what he did. . . . [He] used to work in the
radiation oncology department, so he saw a lot of radiationinduced necrosis.”
(Id. at 112:21-113:5.)
Dr. Sambandam
further stated, “[W]hat I thought was, he will be a man who
would know this, to how [sic] deal with it.”
(Id. at 113:1114.)
7
On October 10, 2006, Mrs. Esposito visited Dr. Domingo, who
noted that there had been no change in the area of the exposed
bone,
“although
tissue
appears
healthier,”
and
Esposito had not been taking any pain medication.
NPC Ex. 44, ECF No. 14-44.)
that
Mrs.
(SUF ¶ 56;
He writes, “[d]iscussed again the
effects of Zometa and the limited treatment available.”
(Id.)
He testified that he understood the effects of Zometa to be
“[d]elayed healing . . . , leading to osteonecrosis.”
Dep. Tr. 71:22-73:10, NPC Ex. 36, ECF No. 14-36.)
stated,
exactly.
“I
don’t
recall
the
conversation
with
(Domingo
He further
Miss
Esposito
But from my notes, it sounds like that’s what I was
explaining to her.”
(Id. at 73:11-23.)
Mrs. Esposito went to another oral surgeon, Dr. Brian P.
Hogan, on October 17, 2006, who, in a letter dated October 20,
2006, writes to Dr. Fisher that Mrs. Esposito “presents with
exposure of the left mandibular osseous tissue.”
Ex. 45, ECF No. 14-45.)
(SUF ¶ 57; NPC
He writes that Mrs. Esposito claims
that this condition developed following extractions, and that
“[s]he claims that at times she has had significant swelling but
at this point she feels more comfortable.”
(Id.)
He explains
that “the panoramic radiograph taken today reveals an osteolytic
area of the left body of the mandible consistent with recent
extractions and osteonecrosis which is also consistent with her
8
history of Zometa IV bisphosphate therapy,” but that “we have no
current
treatment
(Id.)
Nothing
protocol
in
the
for
record
bisphosphate
indicates
how
osteonecrosis.”
much
of
this
information was conveyed to Mrs. Esposito, in what terms, or
when.
Plaintiff Cynthia Esposito testified that her mother’s jaw
pain “would come and go, but then it was constant.”
(Cynthia
Esposito Dep. Tr. 177:23-178:3, Pls. Ex. 23, ECF No. 16-23.)
According
to
the
notes
of
Catherine
Viens,
a
psychiatric
clinical nurse specialist whom Mrs. Esposito saw on October 27,
2006,
Mrs.
Esposito
was
Ex. 46, ECF No. 14-46.)
“reporting
on
and
off
pain.”
(NPC
Nurse Viens noted that Mrs. Esposito
“presents with a left swollen jaw reporting that she has an
infection.
She had teeth pulled last year but secondary to a
cancer medication, this area will not heal.
taking penicillin.”
The patient is now
(Id.)
On February 28, 2007, Mrs. Esposito saw Dr. Sambandam, who
notes that Mrs. Esposito “had developed osteonecrosis in her jaw
because of the Zometa.
She is now managing.
Penicillin trying to keep things good.”
16-10.)
She is taking
(Pls. Ex. 9, ECF No.
On March 5, 2007, Dr. Ray English, an oral surgeon,
diagnosed Mrs. Esposito with “Zometa induced osteonecrosis of
mandible.”
(Pls. Ex. 10, ECF No. 16-11.)
9
Cynthia Esposito and
Bernardo
Zometa
Esposito
caused
English.
both
Mrs.
testified
Esposito’s
that
ONJ
they
after
first
her
heard
visit
with
that
Dr.
(Cynthia Esposito Dep. Tr. 18:6-21, Pls. Ex. 23, ECF
No. 16-23; Bernardo Esposito Dep. Tr. 12:11-13:9, Pls. Ex. 24,
ECF No. 16-24).
Mr. Esposito testified that he “brought [Mrs.
Esposito] to many doctors” before determining the cause of his
wife’s condition.
(Bernardo Esposito Dep. Tr. 13:20-24, Pls.
Ex. 24, ECF No. 16-24.)
When describing what his wife had done
after her second tooth was extracted and her jaw wouldn’t heal,
he stated: “She was worried.
We started seeing oral surgeons
all over the place to find out what the hell is going on.”
at 37:9-15.)
(Id.
He further testified that “[n]obody knew,” and
that no medication was prescribed as far as he knew because
“[n]obody knew what it was.”
In
the
Affidavit
of
(Id. at 37:16-23.)
Cynthia
Esposito
submitted
by
Plaintiffs in support of their opposition to NPC’s Motion for
Summary Judgment (ECF No. 16-25), 3 Cynthia Esposito states that,
“as a result of the information received by me and my mother in
3
NPC contests Plaintiffs’ submission of the Affidavit,
claiming that it consists of hearsay because it contains facts
for which Cynthia Esposito does not have adequate personal
knowledge under Federal Rule of Evidence 602.
With the
exception of several paragraphs mentioning what Mrs. Esposito
“felt” or “thought,” the Affidavit appears to be based on
Cynthia Esposito’s personal knowledge. The Court does not base
its decision on the statements NPC contends are hearsay.
10
the
Spring
of
2007,
I
began
to
investigate
Zometa
on
the
internet and learned of the wrongdoing of [NPC].”
Medical records document the worsening of Mrs. Esposito’s
BRONJ.
Her pain and swelling increased and she had difficulty
swallowing or eating.
bone
fractured
in
(Pls. Ex. 11, ECF No. 16-12.)
multiple
places,
she
developed
Her jaw
a
broken
abscess draining mucus to her sinus and chronic bone infection
(id.), and by 2008, she had developed a fistula draining from
her
mouth
to
her
neck,
and
was
diagnosed
with
bisphosphonate-related osteonecrosis of the jaw.”
ECF No. 16-18.)
“Stage
III
(Pls. Ex. 17,
Dead bone in her jaw broke off internally.
(Pls. Ex. 18, ECF No. 16-19.)
According to Cynthia Esposito’s
deposition testimony, “[a] piece of the jawbone was sticking up
inside of her – the top,” after which Dr. English performed a
debridement.
Ex.
23,
ECF
(Cynthia Esposito Dep. Tr. 180:9-23, Plaintiffs’
No.
16-23.)
Dr.
Sambandam’s
February
report states that Mrs. Esposito “is giving up.”
ECF No. 16-20.)
13,
2008
(Pls. Ex. 19;
Mrs. Esposito passed away in November of 2008
from a recurrence of cancer.
(Plaintiff’s Fact Sheet, NPC Ex.
37, ECF No. 14-37.)
III. Discussion
Summary judgment is appropriate when, viewing the record in
the light most favorable to the non-moving party, there is no
11
genuine
dispute
of
material
fact
and
entitled to judgment as a matter of law.
the
moving
party
is
See Fed. R. Civ. P.
56; Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir.
2009).
The district court must determine “whether there exists
evidence such that a reasonable jury could return a verdict for
the nonmoving party.”
Perry v. Roy, 782 F.3d 73, 78 (1st Cir.
2015) (internal citation and quotation marks omitted).
Because
this case was removed to federal court on diversity grounds,
Rhode Island law applies.
Nicolo v. Philip Morris, Inc., 201
F.3d 29, 33 (1st Cir. 2000).
Rhode
Island
General
Laws
§
9-1-14(b),
which
governs
personal injury suits, dictates that all claims be filed within
three years of the accrual of the cause of action.
Whereas a
cause of action generally accrues at the time of the injury,
Rhode Island uses a “discovery rule” in drug product-liability
actions.
R.I. Gen. Laws § 9-1-14.1; Anthony v. Abbott Labs.,
490 A.2d 43, 46 (R.I. 1985).
“which
could
not
in
the
Under this rule, for injuries
exercise
of
reasonable
diligence
be
discoverable at the time of the occurrence of the incident which
gave rise to the action,” a plaintiff must file suit “within
three
(3)
malpractice
years
of
should,
the
in
have been discovered.”
time
the
that
exercise
the
of
act
or
reasonable
R.I. Gen. Laws § 9-1-14.1.
12
acts
of
the
diligence,
In
drug
product-liability
actions,
manifestation
of
the
injury or the discovery of its cause does not by default trigger
the running of the statute of limitations.
Anthony, 490 A.2d at
46; see also Arnold v. R.J. Reynolds Tobacco Co., 956 F. Supp.
110, 113-14 (D.R.I. 1997).
Rather, the statute of limitations
begins to run at the point when the plaintiff should have, with
reasonable
diligence,
wrongful conduct.
discovered
the
drug
manufacturer’s
Anthony, 490 A.2d at 46.
Anthony explains the rationale behind this rule: “In the
case of a drug product, it cannot be thought that because a
person experiences the adverse effect of a particular drug, she
will or should assume that it was the result of wrongful conduct
on the part of the manufacturer; the normal reaction would be
otherwise.”
Anthony, 490 A.2d at 47.
The person could “assume
that the result suffered is an unavoidable risk of a treatment,
which because of the treatment’s general efficacy, is considered
acceptable
by
unforeseeable
medical
consequence
responsibility.”
Supp.
1330,
standards,
1337
or
beyond
that
it
anyone’s
is
simply
control
an
or
Id. (quoting Dawson v. Eli Lilly & Co., 543 F.
(D.D.C.
1982));
see
also
Renaud
v.
Sigma-
Aldrich Corp., 662 A.2d 711, 715 (R.I. 1995) (“It is not until
. . . the person learns that such adverse effects are not an
expected or a predictable consequence of proper treatment that
13
he or she could possibly be aware that a cause of action exists
against the drug manufacturer.” (citing Anthony, 490 A.2d at
47)).
As the Court further clarified in Arnold, it is reasonable
for
a
person
prescription
to
drug
initially
are
assume
either
that
side
unavoidable
or
effects
of
acceptable
a
by
medical standards – such an assumption derives from “the reality
of
medical
treatment.”
956
F.
Supp.
at
114-15.
Arnold
explains:
[M]edications can have side effects, a patient is
often willing to bear some side effects in order to
realize the curative effects of the drug, and the
patient relies on a physician to properly weigh the
medical benefits and risks (both known and unknown)
when prescribing the medication. Thus, mere knowledge
of the causal link between the drug and the injury is
often insufficient to alert the patient that there may
be a cause of action against the manufacturer — as far
as the patient can tell, the drug worked as best as
the patient and doctor could expect. Therefore, the
Court in Anthony found it proper to toll the
limitations period until the patient could discover
that the underlying assumption was wrong, i.e., that
the adverse side effects were not an expected or
acceptable consequence of proper medical treatment.
Id. (citing Anthony, 490 A.2d at 46–48).
The
factfinder
must
determine
whether
the
plaintiff
exercised reasonable diligence in his or her discovery of the
wrongful
conduct,
or
whether
the
plaintiff
discovered the wrongful conduct earlier.
14
should
have
Anthony, 490 A.2d at
48; see also Zuccolo v. Blazar, 694 A.2d 717, 719 (R.I. 1997)
(where plaintiff continued to search for confirmation of his
suspicions regarding the cause of his joint problems, despite
misdiagnosis by several doctors, the court could not “conceive
of
a
set
of
facts
that
would
more
clearly
demonstrate
the
concept of reasonable diligence as set forth in § 9-1-14.1(b)”).
Under Anthony’s rule, the finder of fact must consider “when a
reasonable person in circumstances similar to plaintiffs’ would
have discovered a defendant’s wrongful conduct.”
A.2d at 48.
Anthony, 490
In evaluating these circumstances, the information
a patient actually received from his or her doctor must be taken
into account, see, e.g., Zuccolo, 694 A.2d at 719, as does the
state of common knowledge regarding the injury associated with
the product, see Arnold, 956 F. Supp. at 115 n.8.
Thus, the question before the Court is whether a genuine
issue of material fact exists as to whether a “reasonable person
in
circumstances
similar
to
[Mrs.
Esposito’s]”
would
have
discovered NPC’s wrongful conduct prior to October 23, 2006.
Anthony, 490 A.2d at 48.
Taking
Undisputed
into
Facts,
account
but
Plaintiffs’
viewing
the
concession
facts
in
the
of
light
NPC’s
most
favorable to Plaintiffs, it is reasonable to infer that in 2005
and 2006 when Mrs. Esposito had teeth extracted, she had not
15
been
meaningfully
apprised
of
Zometa’s
risk
for
causing
ONJ
subsequent to extractions.
On April 11, 2006, after the site of
Mrs.
tooth
Esposito’s
extracted
did
not
heal,
Dr.
Domingo’s
notes state that he informed Mrs. Esposito of “the effects of
Zometa on healing.”
osteonecrosis”
in
Although Dr. Domingo wrote “Bisphosphonate
his
own
assessment,
he
testified
that
he
likely would not have used that specific term in his explanation
to Mrs. Esposito.
Mrs. Esposito was not yet suffering from any
pain deriving from ONJ.
Thus, contrary to NPC’s assertions, it
would not be unreasonable to infer that at the April 11th visit
with Dr. Domingo, Mrs. Esposito was not provided an actual ONJ
diagnosis, and would not have had any reason to suspect that any
wrongdoing had occurred.
On May 26, 2006, when Mrs. Esposito visited an urgent care
clinic due to a sore area of her tongue, she indicated that a
cancer medication she had taken had impacted the bone in her
mouth,
and
was
prescribed
“Magic
Mouth
Wash.”
osteonecrosis or ONJ is absent from the report.
The
term
At this point,
it cannot be seriously disputed that Mrs. Esposito knew she was
experiencing
discomfort
related
to
a
side-effect
of
Zometa.
However, it would be reasonable to infer that Mrs. Esposito did
not yet have any indication that this side-effect was neither
“acceptable
by
medical
standards”
16
nor
“an
unforeseeable
consequence
beyond
anyone’s
control
or
responsibility.”
Anthony, 490 A.2d at 47.
Dr. Sambandam’s reports of Mrs. Esposito’s subsequent three
visits on June 2, 2006, June 14, 2006, and September 27, 2006
largely
indicate
condition.
that
Although
he
he
was
satisfied
addresses
her
with
her
bone-healing
overall
problems,
treats an infection, and directs her to a doctor familiar with
“radiation-induced avascular necrosis,” his positive statements
could reasonably lead to the inference that, having viewed her
symptoms of ONJ, he himself viewed them as medically acceptable
side
effects.
Notably,
he
testified
that
while
his
notes
document ONJ, he did not know or recall whether he discussed ONJ
with Mrs. Esposito during these visits.
After
Mrs.
Esposito’s
October
10,
2006
visit
with
Dr.
Domingo, he notes no change in the affected area, as well as an
apparent improvement.
Dr. Hogan, the oral surgeon Mrs. Esposito
subsequently visits, writes a letter to Mrs. Esposito’s primary
care physician on October 20, 2006, stating that her symptoms
are “consistent with” the extractions of her teeth, and “also
consistent with” her prior Zometa treatment.
mention
ONJ,
it
is
not
clear
directly.
17
what
he
told
While his notes
Mrs.
Esposito
Nurse
Viens’
October
27,
2006
notes
echo
those
of
urgent care physician Mrs. Esposito saw on May 26, 2006.
Esposito
reports
having
an
infection,
and
cancer medication, the area would not heal.
that
the
Mrs.
following
a
Nurse Viens’ notes,
which appear to reflect Mrs. Esposito’s own words, do not convey
any greater understanding by Mrs. Esposito of her condition, or
that she knew she had been diagnosed with a specific, permanent
condition rather than mere healing problems.
Thus,
by
October
23,
2006,
while
Mrs.
Esposito
had
experienced sporadic pain and trouble healing an area in her
mouth, the record does not show as a matter of law that she
should
have
wrongdoing.
known
her
symptoms
were
caused
by
someone’s
See Espada v. Lugo, 312 F.3d 1, 3-4 (1st Cir. 2002)
(in medical malpractice suit, finding that lymphedema diagnosis
did
not
necessarily
put
plaintiff
on
notice
of
wrongdoing,
because “‘knowledge of the author of the harm means more than an
awareness of some ill effects resulting from an operation by a
particular doctor’” (quoting Galarza v. Zagury, 739 F.2d 20, 24
(1st Cir. 1984)); Arnold, 956 F. Supp. at 114-15 (explaining
that while a smoker should be immediately aware that smokingrelated illness is not an acceptable consequence, a “wrongful
conduct” standard applies in prescription drug lawsuits because
a patient would reasonably excuse a prescription drug’s adverse
18
side effects).
It is debatable if or when any of the doctors
Mrs. Esposito had seen through October 23, 2006 treated the ONJ
as anything other than a medically acceptable side effect of her
cancer medication.
Her husband testified that despite going to
numerous oral surgeons, Mrs. Esposito did not immediately learn
what was “going on.”
to
multiple
oral
It indeed appears that Mrs. Esposito went
surgeons
through
and
after
October
2006,
corroborating his testimony.
Significantly, while medical records up to this point use
the term ONJ and osteonecrosis, NPC points to no testimony where
a doctor states that he or she recalls informing Mrs. Esposito
that she in fact had developed a condition called osteonecrosis
of the jaw or bisphosphonate-related osteonecrosis.
See Van
Eman
2013
v.
Novartis
Pharm.
Corp.,
No.
CIV.
A.
11-792,
WL
5603473, at *4-6, 10 (W.D. Pa. Oct. 10, 2013) (finding a genuine
issue of material fact as to whether plaintiff who had taken
Zometa should have discovered his injury at the point when he
had
exposed
bone
and
doctor
informed
him
of
“potential
for
osteonecrosis of the jaw”); see also Wilson v. El-Daief, 964
A.2d 354, 365 (Pa. 2009) (“While we reiterate that knowledge of
‘injury’
and
‘cause’
does
not
require
a
precise
medical
diagnosis, we decline to hold, as a matter of law, that a lay
person must be charged with knowledge greater than that which
19
was
communicated
to
her
by
multiple
medical
involved in her treatment and diagnosis.”).
professionals
Moreover, it is not
evident as a matter of law that by late October 2006, Mrs.
Esposito should have known that, in addition to mere healing
problems and an infection, she had a chronic condition that she
could
expect
permanently
cancer,
to
ultimately
fractured
the
jaw
typical
result
bone,
and
progression
in
disfigurement,
constant
of
pain.
a
Unlike
bisphosphonate-related
osteonecrosis of the jaw is not a matter of common knowledge.
According to the record, Mrs. Esposito did not begin to
experience
difficulty
swallowing
or
eating,
chronic
osteomyelitis, or pathologic fractures of her jaw bone until May
2007, and only later did her bone protrude inside her mouth,
requiring
surgery.
While
“Stage
III
bisphosphonate
osteonecrosis” is documented in January of 2008, nothing in the
record indicates when stages 1 or 2 began.
See Stromenger v.
Novartis Pharms. Corp., No. 3:12-CV-00686-HU, 2012 WL 6649186,
at *7 (D. Or. Oct. 22, 2012) report and recommendation adopted,
No. 3:12-CV-00686-BR, 2012 WL 6649585 (D. Or. Dec. 18, 2012)
(jury could find that complaint was timely where record did not
make
clear
when,
during
plaintiff’s
Zometa-related
“injury”
began,
osteonecrosis
commenced);
Van
or
Eman,
20
series
when
2013
of
stages
WL
infections,
1
or
5603473,
2
at
of
*10
(finding that the point at which Plaintiff was informed of the
link between Zometa and his ONJ did not necessarily set off the
limitations period, but rather that “[r]easonable minds could
differ as to when Plaintiff sustained his injury and whether he
exercised
reasonable
diligence
in
pursuing
a
medical
explanation”).
Thus, it would not be unreasonable to conclude that as of
October
23,
2006,
Mrs.
Esposito
did
not
yet
have
cause
believe she might have a cause of action against NPC.
to
Nor do
the undisputed facts show that, while Mrs. Esposito was aware of
an
injury
reasonable
doctors.
due
to
diligence
Zometa,
at
this
she
was
time
by
See Zuccolo, 694 A.2d at 719.
not
in
fact
consulting
a
conducting
series
of
Therefore, based on the
record, the Court cannot determine whether, as a matter of law,
reasonable diligence should have uncovered potential wrongdoing
by NPC prior to October 23, 2006.
IV.
Conclusion
For the reasons set forth above, NPC’s Motion for Summary
Judgment is DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: September 18, 2015
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?