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Jane Bessemer and Allen A. Bessemer, Sr v. Novartis Pharmaceuticals Corporation

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 13, 2012

JANE BESSEMER AND ALLEN A. BESSEMER, SR., PLAINTIFFS-APPELLANTS,
v.
NOVARTIS PHARMACEUTICALS CORPORATION, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1835-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2012 -

Before Judges Fuentes, Graves and Koblitz.

Plaintiff Jane Bessemer*fn1 , a breast cancer patient with bone metastases, received a multitude of intravenous treatments of bisphosphonates Aredia and Zometa manufactured by defendant Novartis Pharmaceuticals Corporation (Novartis) to reduce the risk of skeletal-related events such as fractures and spinal degeneration, as well as to alleviate bone pain. During the time period when she received treatments, between May 1999 and April 2004, plaintiff also underwent invasive dental procedures. She discovered that she developed osteonecrosis of the jaw (ONJ) as a result of a June 2000 tooth extraction, which "triggered" the disease.*fn2 She claimed that the dentists and oral/maxillofacial surgeons' treatment of the disease only worsened the condition because they were unaware of the peculiar nature or cause of this type of jaw bone disease. Plaintiff and her husband filed suit under the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, alleging that defendant knew or should have known that Aredia and Zometa could cause ONJ and should have issued warnings to plaintiff and her treating dentists and oral surgeons, as well as to her prescribing oncologist.*fn3

Plaintiff appeals from the October 22, 2010 judgment after a jury verdict in defendant's favor, claiming that the pre-trial grant of partial summary judgment to defendant constituted reversible error. The trial judge decided in an April 30, 2010 opinion and order that Novartis had no duty to warn non- prescribing dentists or oral surgeons under the PLA. In an August 20, 2010 opinion and order, the trial judge applied the learned intermediary doctrine, see Niemiera v. Schneider, 114 N.J. 550, 559 (1989)(citing Bacardi v. Holzman, 182 N.J. Super. 422 (App. Div. 1981)), rejecting plaintiff's allegation that Novartis advertised directly to the consumer, see Perez v. Wyeth Laboratories Inc., 161 N.J. 1, 14-15 (1999), and also dismissed plaintiff's express warranty claim under the Uniform Commercial Code, N.J.S.A. 12A:2-313.

After reviewing the extensive record in light of the arguments advanced on appeal, we affirm substantially on the basis of the well-considered and thorough opinions of Judge Mayer, which are well supported by the evidence and legal precedent.*fn4 Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Affirmed.


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