Emerson Ex Rel. Crews v. Novartis Pharmaceuticals Corp.
446 F. App'x 733
6th Cir.2011Background
- Emerson, as Tim Crews' surviving adult daughter and personal representative, sues Novartis over osteonecrosis of the jaw allegedly caused by Zometa and Aredia.
- District court granted summary judgment to Novartis on the Florida government-rules presumption that properly approved products are not defectively dangerous.
- Emerson's arguments were deemed preempted by Buckman and failed to rebut the Florida presumption.
- Emerson attempted to rely on broad incorporation of MDL materials without identifying specific, record-cited facts or portions.
- The panel affirmed, holding Emerson did not raise particularized facts to rebut the presumption, so summary judgment was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Emerson rebutted Florida's presumption | Emerson contends presumption can be overcome by evidence of defect. | Novartis is entitled to presumption given FDA approval and Emerson failed to rebut. | No rebuttal found; district court correct to grant summary judgment. |
| Effect of fraud-on-the-agency claim | Fraud-on-the-agency defeats presumption if proven. | Fraud-on-the-agency is preempted by federal law. | Preempted; not sufficient to defeat presumption. |
| Adequacy of incorporation-by-reference | Broad MDL materials should be considered to rebut the presumption. | Rule 56 requires specific citations; broad incorporation is insufficient. | Insufficient to defeat summary judgment. |
| District court's reliance on the parties' arguments | Court should search record for any possible rebuttal evidence. | Court need not scour entire record; must rely on properly presented arguments. | No error; lack of properly identified arguments supports affirmation. |
Key Cases Cited
- Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (1999) (fraud-on-the-agency preemption of state-law claims)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden shifting)
- Chicago Title Ins. Corp. v. Magnunson, 487 F.3d 985 (6th Cir. 2007) (district court not required to search entire record)
- Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989) (district court not required to scour record for disputes)
- United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991) (judges are not like pigs hunting for truffles)
- Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) (standard for summary judgment in the circuit)