Ezeb v. Sandoz Pharmaceuticals

BELSOME, J., dissents with reasons. hi fully acknowledge the burden placed upon the plaintiff to establish a prima facie case against the defendant. However, a thorough review of the record in this matter demonstrates that Dr. Thomas Brown’s testimony and affidavit concerning the ambiguity of Novartis’ warning as it relates to NMS are sufficient to establish a contested genuine issue of material fact to be decided by the factfinder at trial. See Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2004), 866 So.2d 228 . Even though Dr. Brown’s testimony regarding the warning on Clozaril cannot be used at trial due to his present employment, his past statements are at the very least sufficient to prevent the trial court from granting summary judgment at this time. I would remand the matter to allow the plaintiffs additional time to find an expert to replace Dr. Brown. Therefore, I dissent. ORDER | tin light of the application for rehearing filed on April 14, 2010, by the appellant in the above numbered and entitled matter: IT IS HEREBY ORDERED that the rehearing is granted. *173 IT IS FURTHER ORDERED that appellant show cause in writing by April 27, 2010, as to the timeliness of the motion for new trial and subsequent motion for appeal. See Mitchell v. La. Power & Light Co., 380 So.2d 743 (LaApp. 4th Cir. 1980), Reeves v. Reeves, 315 So.2d 162 (La.App. 1st Cir. 1975).