United States District Court, D. Rhode Island
CYNTHIA L. ESPOSITO, Individually and as the Executrix of the Estate of Roselyn Esposito, and BERNARDO ESPOSITO, Plaintiffs,
NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
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 (ECF No. 13), claiming that Plaintiffs’ suit is time-barred. For the reasons set forth below, NPC’s Motion for Summary Judgment is DENIED.
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 Statement of Undisputed Facts (“SUF”) ¶¶ 7-9, ECF No. 14.) Plaintiffs seek damages for Mrs. Esposito’s injuries and her husband’s loss of consortium, premised on strict product liability, failure to warn, negligence, and breach of warranty under Rhode Island law.
Plaintiffs initially sued NPC in Rhode Island Superior court on October 23, 2009. 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, it is entitled to summary judgment.
Mrs. Esposito was diagnosed with renal cell carcinoma and underwent surgery to remove a kidney in July 2002. (SUF ¶¶ 29-30.) In September 2003, she was diagnosed with metastatic cancer after her clavicle was pathologically fractured. (Id. at ¶ 31.) 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. (Id. at ¶¶ 31-34.) Dr. Sambandam testified that he first learned about the association between Zometa and osteonecrosis of the jaw (“ONJ”) at some point in 2004. (Id. at ¶ 39.)
On August 19, 2005, Dr. E. Joseph Domingo, an oral surgeon, extracted one of Mrs. Esposito’s teeth. (Id. at ¶ 42.) Dr. Domingo testified that although he was aware that invasive dental procedures were not recommended for patients taking Zometa due to the risk of ONJ, Mrs. Esposito had not informed him of her ongoing Zometa treatment. (Id. at ¶ 43.) Mrs. 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.) His noted “Assessment” was “Bisphosphonate osteonecrosis” and according to his notes and testimony, he prescribed Peridex, an antibacterial mouth rinse. (Id.) Dr. Domingo testified that he did not recall what he told Mrs. Esposito at this visit or whether he would have correlated Zometa with her condition at that point, that he “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 Facts (“PUF”) ¶¶ 25-27, ECF No. 16-26; Domingo Dep. Tr. 54:6-57:10, Pls. Ex. 22, ECF No. 16-22.)
On May 26, 2006, Mrs. Esposito visited an urgent care clinic complaining of a sore area on her tongue. (SUF ¶ 51.) According to her treating physician’s notes, 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, he did not know, could not recall the conversation, and could not recall whether he discussed ONJ with her. (SUF ¶ 53; PUF ¶ 11; Sambandam Dep. Tr. 88:18-91:5, Pls. Ex. 21, ECF No. 16-21.) In the “Objective” part of his report, Dr. Sambandam describes “open wounds on the left side of the mandible, ” and notes “[s]he really is ...