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Expert Improperly Nixed in Zometa Injury Suit

(CN) - A judge in one of the multidistrict cases over the drug Zometa improperly excluded expert testimony from an oral surgeon, the 9th Circuit ruled Friday.

Linda Messick sued Novartis Pharmaceuticals Corp. after the bisphosphonate Zometa, which she took to combat osteoporosis after chemotherapy, allegedly destroyed her jaw. The company has fought a number of similar product-liability complaints in courts around the country.

U.S. District Judge Susan Illston in San Francisco granted Novartis summary judgment against Messick after excluding expert testimony from oral surgeon Richard Jackson as irrelevant and not properly scientific

Jackson had attempted to show a link between Messick's jawbone damage, known as osteonecrosis of the jaw or ONJ, and bisphosphonate-related osteonecrosis of the jaw, or BRONJ, but the lower court found that his "differential diagnosis only determines that Ms. Messick's ONJ is related to her bisphosphonate use, and he admits that a diagnosis of BRONJ does not mean that bisphosphonates caused her ONJ."

A three-judge panel of the 9th Circuit reversed Friday, however, after finding that Illston "applied too high a relevancy bar."

"While Dr. Jackson never explicitly stated that Messick's bisphosphonate use caused her BRONJ, he did say it was at least a substantial factor in her development of BRONJ," Judge Ronald Gould for the panel in Seattle. "Specifically, Dr. Jackson equated Messick's use of bisphosphonates leading to BRONJ with the oxygen necessary to start a fire. Although one might imagine more targeted testimony, Dr. Jackson's testimony indicates that Messick's bisphosphonate use was a substantial factor in her development of BRONJ, so his testimony is relevant."

Illston similarly stumbled in excluding for lack of a "scientific basis" Jackson's opinion that it was unlikely for a patient who had not been exposed to radiation to develop a serious case of ONJ without taking bisphosphonates, the panel found..

"Medicine partakes of art as well as science, and there is nothing wrong with a doctor relying on extensive clinical experience when making a differential diagnosis," the ruling states.

Finding that Jackson's testimony "creates a genuine issue of material fact regarding the specific causal link between Messick's bisphosphonates treatment and her development of ONJ," Gould wrote.

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