Michel Hendrix v. Novartis Pharmaceuticals Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHEL HENDRIX,
Plaintiff - Appellant,
v.
NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant - Appellee.
No. 13-56867
D.C. No. 2:13-cv-02402-MWF-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted December 11, 2015
Pasadena, California
Before: PREGERSON, TASHIMA, and CALLAHAN, Circuit Judges.
Michael Hendrix (“Hendrix”) brought suit against Novartis Pharmaceuticals
Corporation (“Novartis”), alleging that Novartis’s prescription drug, Zometa,
caused his osteonecrosis of the jaw. Hendrix appeals the district court’s summary
judgment in favor of Novartis, as well as the district court’s order denying
FILED
APR 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Hendrix’s motion for leave to file an amended complaint for punitive damages. We
have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s grant
of summary judgment de novo, Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859
(9th Cir. 2011), we affirm. Accordingly, we dismiss as moot the appeal from denial
of leave to amend.
1. The district court did not err in holding that Hendrix’s claim was time
barred under California’s two-year statute of limitations for personal injury. See
Cal. Code Civ. Proc. § 335.1. There are no genuine issues of material fact as to
when Hendrix discovered, or had reason to discover, his injury. See Jolly v. Eli
Lilly & Co., 44 Cal. 3d 1103, 1110–11 (1988) (noting that the limitations period
begins to run when a plaintiff suspects, or through reasonable diligence should
suspect, that the injury was caused by wrongdoing). By late 2003, Hendrix had
been given a working diagnosis and was taken off Zometa, because it was believed
to have caused his osteonecrosis of the jaw. This belief was communicated to both
Hendrix and his wife. Any reasonable jury would conclude that Hendrix knew or
should have suspected that Zometa had caused his injuries more than two years
before his January 17, 2006 filing. We affirm the district court’s grant of summary
judgment.
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2. Because we have affirmed the district court’s grant of summary
judgment, whether leave to amend was properly denied is now moot. Thus, there
no longer is any live, substantive claim to which a prayer for punitive damages
could attach.
The district court’s grant of summary judgment is AFFIRMED. The appeal
from the denial of leave to amend is DISMISSED.
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