Eastern District of New York Excludes Entire Testimony from Plaintiff”s Purported Regulatory and Warnings Expert

May 3, 2011

Novartis Pharmaceuticals Corp. (NPC), successfully opposed plaintiff’s attempt to re-designate her previously withdrawn oncology expert, Dr. James Vogel, a little more than a week before jury selection was scheduled to begin in Hogan v. Novartis Pharmaceuticals Corp., 1:06-cv-00260-BMC-RER (E.D.N.Y.).  Ms. Hogan alleged that her deceased husband’s use of Zometa caused him to develop osteonecrosis of the jaw.  Plaintiff had previously designated Dr. Vogel as an expert witness in this case, but after NPC took Dr. Vogel’s deposition and filed its Daubert motion seeking to exclude Dr. Vogel’s testimony, plaintiff withdrew him as an expert.  After United States District Court Judge Brain M. Cogan later granted NPC’s Daubert motion to exclude the testimony of plaintiff’s FDA expert, Dr. Suzanne Parisian, plaintiff moved to re-designate Dr. Vogel arguing that Dr. Parisian’s “unexpected” exclusion left her without an expert who could opine as to the adequacy of the Zometa label.  Plaintiff also argued that NPC would not be prejudiced since it had already taken Dr. Vogel’s deposition and briefed the admissibility of his testimony.  The court denied plaintiff’s motion to re-designate Dr. Vogel finding that plaintiff should have reasonably anticipated the exclusion of Dr. Parisian given that her testimony has previously been limited or excluded in its entirety by other courts.  The court also found that NPC would be prejudiced by the late designation of Dr. Vogel.