                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 20 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DUANE E. LUTTRELL,                               No. 12-35893

              Plaintiff - Appellant,             D.C. No. 2:07-cv-03015-TOR

  v.
                                                 MEMORANDUM*
NOVARTIS PHARMACEUTICALS
CORPORATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                      Argued and Submitted February 3, 2014
                               Seattle, Washington

Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.

       Appellant Duane Luttrell appeals the district court’s order granting summary

judgment to Novartis Pharmaceuticals Corporation (“Novartis”). We review a

grant of summary judgment de novo. Lust By and Through Lust v. Merrell Dow




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pharm., Inc., 89 F.3d 594, 596 (9th Cir. 1996). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      Washington products liability law requires that a plaintiff show proximate

cause, composed of both cause in fact and legal causation. Hartley v. State, 698

P.2d 77, 82–83 (Wash. 1985). Cause in fact is lacking when an injury would have

occurred regardless of the defendant’s conduct. Davis v. Globe Mach. Mfg. Co.,

684 P.2d 692, 696 (Wash. 1984). When a plaintiff brings an insufficient warning

claim against a drug company, the learned intermediary doctrine requires a

showing that the prescribing physician, not the patient, would have taken “a

different course of action” if better warnings had been issued. Laisure-Radke v.

Par Pharm., Inc., 426 F. Supp. 2d 1163, 1174 (W.D. Wash. 2006); see Adams v.

Synthes Spine Co., 298 F.3d 1114, 1117 (9th Cir. 2002); Terhune v. A.H. Robins,

Co., 577 P.2d 975, 977–78 (Wash. 1978).

      Although a jury normally decides a question of causation, it may be decided

by a judge when “reasonable minds could reach but one conclusion.” Ruff v. Cnty.

of King, 887 P.2d 886, 889 (Wash. 1995). Here, even assuming that Novartis’

warnings were inadequate, we conclude that the district court properly granted

summary judgment to Novartis because Luttrell cannot prove proximate cause.

Luttrell contends that either he or his doctor would have taken a different course of


                                          2
action if Novartis had issued better warnings regarding the risks of developing

bisphosphonate-related osteonecrosis of the jaw (“BRONJ”). Luttrell did develop

osteonecrosis of the jaw (“ONJ”) after taking bisphosphonates as part of his

treatment for myeloma. However, in our view, Luttrell cannot prove proximate

cause because the prescribing physician resumed Luttrell’s bisphosphonate

treatment after his development of ONJ and after the filing of this lawsuit. The

record makes clear that the doctor understood the connection between

bisphosphonates and the risk of osteonecrosis of the jaw, and that in his medical

opinion the benefits of the treatment for the patient outweighed those risks.1

      AFFIRMED.




      1
       Because the failure of Luttrell to show proximate cause is dispositive, we
need not reach the issue of the district court’s exclusion of expert testimony.

                                          3
