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Irby v. Novartis Pharmaceuticals Corp.

Superior Court of New Jersey, Appellate Division

June 14, 2013

CHARLES IRBY, Plaintiff-Appellant,
v.
NOVARTIS PHARMACEUTICALS CORPORATION, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 10, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1815-08.

Parker Waichman, L.L.P., attorneys for appellant (Gary P. Falkowitz, on the briefs).

Sills Cummis & Gross, P.C., and Rebecca A. Womeldorf (Hollingsworth, L.L.P.) of the District of Columbia, Georgia and Mississippi bars, admitted pro hac vice, attorneys for respondent (Beth S. Rose, Charles J. Falletta and Ms. Womeldorf, on the brief).

Before Judges Simonelli, Koblitz and Accurso.

PER CURIAM

Plaintiff Charles Irby appeals from a March 16, 2012 order dismissing his case with prejudice and a May 11, 2012 order denying plaintiff's motion for reconsideration. While the complaint was brought in New Jersey, the judge determined that Virginia's statute of limitations governed. We affirm.

Plaintiff is a resident of Virginia. Defendant Novartis Pharmaceuticals Corporation is incorporated in Delaware, with its principal offices in East Hanover, New Jersey. Plaintiff received Zometa[1] injections manufactured by defendant as treatment for multiple myeloma in 2002. At this time, Zometa's information packet did not include information about a potential side effect of osteonecrosis of the jaw (ONJ). Plaintiff was diagnosed with ONJ in December 2003 and filed his complaint on March 29, 2006, three months after Virginia's statute of limitations expired. In his compliant, he alleged six counts: defective design, failure to warn, breach of implied warranty, negligence, violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -195, and punitive damages under common law, the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, and the Product Liability Act, N.J.S.A. 2A:58C-1 to -11. The parties agree that while plaintiff's claim is time-barred under Virginia's statute of limitation, it is not time-barred under New Jersey's statute of limitations.

The parties entered into a choice of law stipulation in September 2011. In pertinent part the stipulation reads:

1.Solely for the purpose of this case and without prejudice to choice of law issues governing other cases, the substantive law of the State of Virginia shall govern plaintiff's failure to warn, defective design, breach of implied warranty, negligence, and consumer fraud act claims.
2. New Jersey law shall govern all procedural or evidentiary disputes.

Thus, the parties agreed that New Jersey law would govern procedural issues, and Virginia law would govern substantive issues. Determining that the Virginia statute of limitations applied, the motion judge granted defendant's motion for summary judgment.

An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); see also Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue ...


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