Thomas Mckay v. Novartis Pharmaceutical Cor
751 F.3d 694
5th Cir.2014Background
- McKay v. Novartis court proceedings spanned MDL transfer to TN and remand to Texas, involving Aredia and Zometa and allegations of osteonecrosis of the jaw.
- MDL court applied Texas choice-of-law and § 82.007(a) presumption against liability for failure-to-warn claims, granting partial summary judgment for Novartis.
- Remand court in Texas granted summary judgment on remaining claims, treating all failure-to-warn claims as precluded by § 82.007(a) and severing other issues.
- McKays moved for Rule 56(d) discovery to contest Texas law applicability; the court found information was available and denied relief.
- On appeal, McKays challenge Rule 56(d) ruling, remand-law-of-the-case treatment, off-label rebuttal arguments, and warranty-notice compliance.
- Texas breach-of-warranty claims were dismissed for failure to provide statutorily required notice under Tex. Bus. & Com. Code § 2.607.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the MDL court abuse Rule 56(d) discretion? | McKay asserts discovery delay justified relief. | Novartis contends information was available and discovery dilatory. | No abuse; discovery was not diligently pursued. |
| Did remand court correctly apply law of the case to § 82.007 and its rebuttals? | Lofton-based rebuttals and off-label evidence should evade the presumption. | MDL ruling on § 82.007(a) controls; law of the case forecloses new arguments. | Remand court did not err in applying law of the case. |
| Are McKays' warranty claims barred for lack of statutorily required notice? | Notice was satisfied via Dr. Leibowitz and related proceedings. | Notification to a remote manufacturer was insufficient; notice must be to Novartis. | Yes; warranty claims barred for lack of proper notice; remand court properly granted summary judgment. |
| Did Texas choice-of-law determine the governing substantive law for the failure-to-warn claims? | California connections may show California law applies. | Texas ties dominate; Texas law governs substantive questions. | Texas law applies; McKays' evidence not overwhelming to disturb prior ruling. |
Key Cases Cited
- Lofton v. McNeil Consumer & Specialty Pharmaceuticals, 672 F.3d 372 (5th Cir. 2012) (Lofton preempts part of § 82.007(b)(1) otherwise; supports limitations on rebuttal.)
- In re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009) (Law of the case framework for transferee decisions in MDL.)
- Xerox Corp. v. Genmoora Corp., 888 F.2d 345 (5th Cir. 1989) (Law-of-the-case principle; relitigation avoided in MDL context.)
- Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595 (5th Cir. 2001) (Rule 56(d) relief requires diligent pursuit of discovery.)
- Guillory on Behalf of Guillory v. United States, 699 F.2d 781 (5th Cir. 1983) (Weight given to state law factors in choice-of-law analysis.)