Skip to main content

Osteonecrosis of the Jaw Lawsuit by Cancer Survivor Complicated by Subpoena Woes

By September 20, 2013July 16th, 2019Dangerous Drugs

I wrote here last week about the problems with Fosamax (alendronate sodium), a drug prescribed mainly to people suffering from osteoporosis or who are at high risk for osteoporosis. This week, an article caught my eye because it’s about a drug injury lawsuit involving the same serious injury that Fosamax can cause, but two related drugs. According to, Ruth Dopson-Troutt sued Novartis after her treatment with Aredia (pamidronic acid) and Zometa (zoledronic acid) allegedly caused osteonecrosis of the jaw. Aredia and Zometa, like Fosamax, are used to strengthen bones; all three are made by pharmaceutical company Novartis. Dopson-Troutt took them because her breast cancer had spread to her bones. The judge in her Central Florida lawsuit ruled that she may not subpoena two Novartis employees because they work in New Jersey, too far from the trial.
Dopson-Troutt was diagnosed with breast cancer in 1997, and the cancer spread to the bones of her hip and pelvis. Her doctor prescribed Aredia and Zometa for six years between 1999 and 2005. After she had a tooth extracted, however, she developed osteonecrosis of the jaw, a condition where cells of the jawbone literally die. The condition causes mouth lesions that will not heal and expose the bone, creating pain and sometimes infections. The class of drugs to which Aredia, Zometa and Fosamax belong, bisphosphonates, has been known to cause osteonecrosis of the jaw for about a decade; reports to the FDA began in 2002 and the first peer-reviewed medical journal article appeared a year or two later. Nonetheless, safety studies by Novartis put the risk substantially lower than independent studies did.
Dopson-Troutt and her husband filed a defective drug lawsuit against Novartis, for failure to warn and other torts, and the case was ultimately not consolidated in the multi-district litigation that was then pending in Tennessee. After surviving summary judgment, the plaintiffs subpoenaed two Novartis employees, Diane Young and Joanne Machalaba. The subpoenas were served on the registered agent for Novartis in Tallahassee, Florida, in the same state as the lawsuit itself. But Young and Machalaba are New Jersey residents and were named individually, the court ruled. Federal rules require service on individuals if they are subpoenaed as individuals rather than corporate officers. As a result, the Central Florida court ruled they were not properly served. And even if they are officers, the judge ruled, the court cannot compel them to attend the trial. Thus, the subpoenas were quashed.
This ruling is unlikely to end the plaintiffs’ case, but it’s a victory for Novartis, whose employees now cannot be compelled to testify about important issues in the case. The article didn’t say what the testimony would have been, but employees are likely to have knowledge important to several areas of a pharmaceutical liability lawsuit. That could include testimony showing that the company suppressed safety-related information about Aredia, Zometa and Fosamax; information about the safety warnings on the drug’s labels; and information about the company’s interactions with the FDA. All of this would help plaintiffs like Dopson-Troutt establish that the company violated its duty to warn her and people like her about the risks of osteonecrosis of the jaw from its bisphosphonate drugs.

If your family has suffered a loss or a serious injury you attribute to an unreasonably dangerous medication, don’t hesitate to call Carey, Danis & Lowe for a free consultation. Based in St. Louis, we represent clients around the United States. You can reach us through our website or call 1-877-678-3400.
Similar blog posts:
After Settlement Fails, Judge Orders Fosamax Jaw Injury Cases Back to Home Courts
Claim That Fosamax Caused New York Woman’s Broken Leg Starts Trial
Second Circuit Rejects Bid to Include Expert Testimony in Fosamax Injury Case – In re Fosamax Products Liability Litigation