News Flash: Mass Tort Defendants in New Jersey Entitled to Level Playing Field

Because Bexis’s firm is involved in the Pelvic Mesh litigation, he is not involved in this post about yesterday’s opinion of the New Jersey Appellate Division in In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4, slip op. (N.J. Super. App. Div. June 1, 2012). 

We wish it wasn’t so newsworthy, but defendants in New Jersey have had a devil of a time getting the same opportunity as plaintiffs in mass torts to obtain certain important evidence.  And now, so sayeth the Appellate Division.

Here’s what happened.  The Pelvic Mesh mass tort involves several hundred plaintiffs.  After first precluding defendants from informally contacting plaintiffs’ treating physicians – ordinarily allowed under Stempler v. Speidell, 495 A.2d 857 (N.J. 1985) – the court entered an order precluding any defendant from using as an expert witness any physician who had ever treated or consulted with any plaintiff, even though that plaintiff was not the subject of the expert testimony.  As described by the Appellate Division:

[T]he [trial] court issued an order and written decision dated May 26, 2011, barring defendants from consulting with or retaining any physician who had at any time treated any plaintiff in the pelvic mesh litigation. . . .  At the time of the court’s order, the number of plaintiffs had risen to more than 220.  Defendants estimated that more than 1,000 physicians were thus disqualified as potential defense experts.

Pelvic Mesh, slip op. at 8-9. 

The result was predictable.  The plaintiffs in that litigation had the opportunity to try to retain as an expert any physician in the relevant specialties.  The defense, on the other hand, was prevented from retaining a significant number of the available experts, disproportionately including the most active specialists with the largest practices.

Not only that, but the exclusion order was retroactive, disqualifying already-retained defense experts because that physician happened to treat (even a single consultation was enough) a plaintiff in a newly-filed case:

Although the trial court’s order made reference only to treating physicians, its ruling disqualifying [an already-retained defense expert] indicates that even a single consultation with a plaintiff will prevent the defense from consulting with or engaging a physician as an expert against the claims of other plaintiffs.

Pelvic Mesh, slip op. at 14.

Fortunately, the Appellate Division set this ruling aside.  First, the Appellate Division rejected the rationale that the plaintiffs’ physician/patient confidences were threatened.  Those confidences pretty much no longer exist, since plaintiffs waive them when they file suit:

[T]he physician-patient privilege has limited significance in this dispute.  Because plaintiffs have filed suit, they have waived a claim of privilege with respect to any medical condition relevant to their claims.  A plaintiff in these cases cannot claim the privilege as to the diagnosis and treatment of her medical condition that is the subject of the lawsuit. . . .  Here, the treating physicians that defendants seek as experts are [specialists].  The treatment and consultations provided by those specialists most likely involved only medical conditions that are relevant to plaintiffs’ claims of injuries in this litigation, including the medical history that was provided to the specialists.  If treating physicians have knowledge of a plaintiff’s medical history or condition that is irrelevant to this litigation, the privilege can be protected by defendants’ proposed protocol.

Pelvic Mesh, slip op. at 12-13 (citations and footnote omitted).

Doctors are smart enough to “understand they are subject to ethical constraints against disclosure of confidential patient information.”  Id. at 13.  The defendants were quite willing to remind doctors of this fact through their proposed protocols.  Id.  There was no need for restrictive court-imposed prophylaxis. 

Instead, the Appellate Division held that courts cannot exalt a plaintiff’s “litigation interests” over that of the other side:

We conclude that the court’s ruling was a mistaken exercise of authority to manage this litigation.  It inappropriately equated a plaintiff’s “litigation interests” with a patient’s “medical interests,” and it elevated those “litigation interests” to a preemptive level not previously recognized by binding authority.  It imposed sweeping restrictions upon physicians that allow litigation instituted by a current or former patient to interfere with the physician’s professional judgment about the medical interests of all the physician’s patients. Moreover, it deprived defendants of fair access to physicians who could be among the best-qualified experts in these cases.

Pelvic Mesh, slip op. at 15.  The “litigation interests” excuse really bothered the Appellate Division.  It returned to that point several times:

We disavow any suggestion that a physician, or any witness for that matter, has a duty to support substantively a litigant’s claims or defenses.  The duty of a witness is to tell the truth when testifying and to provide information accurately in anticipation of testimony.  No physician or other witness has a duty to support the “litigation interests” of a party to a lawsuit in the sense of supporting the party’s claims or defenses.

Id. at 26-27. And still more:

Although the “medical interests” of a patient may be consistent or overlap with the patient’s “litigation interests,” such a determination should be made as a matter of professional judgment by the treating physician, not by the patient’s lawyers, or by the courts applying wholesale rules of prohibition and disqualification.

Id. at 31.  Such a “duty of loyalty” is “beyond the scope of judicial authority to impose.” Id. at 35-36. 

The Appellate Court also addressed the trial court’s concern that “a physician is ethically or legally obligated to ensure the continuing trust of a patient who has brought a lawsuit.”  Id. at 15.  In the first place, those concerns “do not apply to a physician whose treatment of or consultation with a patient plaintiff has ended.”  Id.  More important, doctors serving as experts in litigation likely give opinions adverse to “litigation interests” of some of their patients.  But it is their experience with those and other patients that qualifies them to be experts:

[I]n many types of personal injury cases, physicians who testify for the defense or consult with defense counsel provide those services contrary to the interests in litigation of other patients they have treated or continue to treat. . . .  Our system of civil justice does not bar a physician from expressing a position in litigation of one plaintiff that is contrary to the “litigation interests” of a current or past patient in another case.  In fact, it is the physician’s experience with similar injuries or conditions that qualifies him or her to provide expert opinion for the defense in a personal injury case.

Pelvic Mesh, slip op. at 16-17. 

Furthermore, although not before the Appellate Division, its opinion powerful ammunition for defendants to try to eliminate the exception to Stempler that New Jersey trial courts have made in the past in mass torts.  The Appellate Division explained the ruling by the New Jersey Supreme Court in Stempler:

The Court rejected the argument of the plaintiff that a patient’s rights to confidentiality and the loyalty of his physician should be paramount.  It confirmed the right of defense counsel to interview treating physicians informally and outside the presence of plaintiffs or their attorneys if the treating physician consents.  In addition to recognizing the right of access to the doctor’s relevant information, the Court noted that historically the physician-patient privilege has not been broadly applied, and that patients have only a “qualified” right of confidentiality in the physician’s information.

Pelvic Mesh, slip op. at 23 (Stempler cites omitted). 

Subsequently, however, a number of trial courts created a mass-torts exception to Stempler, barring defendants from conducting such ex-parte interviews of plaintiffs’ doctors.  We’ve posted before about these rulings and how they undercut defendants’ rights as recognized by Stempler. 

But the Appellate Division’s Pelvic Mesh opinion now provides strong language and reasoning to wipe away once and for all that exception.  The existence of a mass tort – that is, the mere fact that plaintiffs chose to invoke a procedural rule to consolidate cases – doesn’t justify imposing unequal restrictions on defense rights to gather information from treating physicians:

[O]ur mass tort procedures for managing coordinated litigation will unfairly hinder defendants’ right to defend lawsuits such as these if plaintiffs as a group may engage as experts any qualified physicians with knowledge and experience but defendants may not.  The fact that plaintiffs have filed suit in this State and taken advantage of our Rule 4:38A for joint case management should not affect the availability of relevant evidence to both sides. It should not preemptively limit defense access to the same pool of qualified witnesses and consultants knowledgeable about defendants’ products as available to plaintiffs.

Id. at 25 (emphasis added) (footnote omitted).  Everything said in Pelvic Mesh about expert witnesses is equally applicable to Stempler informal interviews. 

Litigation plaintiffs don’t own their treating physicians:

Here, the treating physicians are not confidential expert consultants whose services were engaged by plaintiffs’ counsel for purposes of preparing litigation.  The identity of treating physicians and the fact that they possess relevant knowledge will be known to both sides as they are identified by plaintiffs and their medical records.  As previously stated, the relatively insignificant risk in these cases that treating or consulting specialists may reveal privileged information if consulted or retained by the defense can be addressed through appropriate protective measures.

Pelvic Mesh, slip op. at 22. 

In light of this new Pelvic Mesh precedent, we look forward to defendants in New Jersey challenging the mass-torts exception to Stempler and getting back the right to obtain information from treating physicians via interviews, just as do plaintiffs.  As the Appellate Division said in Pelvic Mesh in reversing the trial court, it should be a level playing field:

Both sides in this litigation should have the opportunity to present evidence from the most qualified physicians who can serve as experts.  The trial court’s order unfairly impeded defendants’ access to many of those physicians, and so, must be reversed.

Pelvic Mesh, slip op. at 40-41.

Ethics in DC - It's Not an Oxymoron

Thanks to FDA guru, regular reader, and occasional correspondent, Arnie Friede, we’re aware of an interesting ethical development in the District of Columbia.  It has to do with one of our recurrent topics – the ability of defense counsel to investigate their cases through informal contacts with probably the most relevant witnesses in the case – the plaintiff’s treating physicians – without harassment from the other side (who, of course are perfectly free to do so themselves).

We’ve even created a 50-state chart, that we try to keep updated, of what we’re allowed to do where in this regard. Most of what’s in that chart is case law, but not all of it.

As our chart indicates, as in a number of states, DC law freely allows informal interviews with treating physicians.  Street v. Hedgepath, 607 A.2d 1238, 1247 & n.8 (D.C. 1992); Miller v. Hilton Hotels Corp., 1993 WL 210866, at *3, 995 F.2d 305 (D.C. Cir. 1993) (table); Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983).

Notwithstanding that informal interviews are permissible, a DC plaintiff attorney wanted to order his client’s treater not to speak to defense counsel (even if the doctor wanted to).  Fortunately, this attorney had the good sense to check with the ethics committee of the DC bar before attempting such interference.  The committee wrote an opinion declaring that such an order to the treater by a lawyer would have been unethical.  Here’s the committee’s reasoning in a nutshell:

• As noted above, the informal interview procedure was allowable under local law, and there was no HIPAA impediment, since defense counsel was proceeding with court approval.
• The informal interviews themselves are ethical.  They do not violate Rule 4.4(a), which prohibits a lawyer from “knowingly us[ing] methods of obtaining evidence that violate the legal rights of [a third] person,” since they’re legally permitted.
• A treating physician is not within any of the exceptions to Rule 3.4(f) – meaning that a treating doctor is not considered a patient’s “employee” or “agent,” absent highly unusual circumstances not present in most cases.
• “[T]he treating physician is no different from any other witness who is neither a client nor a relative, employee, or other agent of a client, and the answer to the inquiring lawyer’s first question is clear. Rule 3.4(f) prohibits plaintiff’s counsel from requesting that the physician decline to speak with defense counsel” (emphasis added).
• Plaintiff’s counsel can inform the treater that he’s not required to speak with our side.  Big deal, we tell that to treaters ourselves.
• Given that treaters are simply non-party witnesses under Rule 3.4(f) it’s not ethical for plaintiff’s counsel to “discourage” them from meeting with both sides equally by “requesting” that opposing counsel be present for any interview.
• “[I]t would be inconsistent with the intent of the rule [3.4(f)] to permit a lawyer to request that conditions be imposed on communications with opposing counsel that could discourage the witness from allowing the communication.”
• Under Rule 3.4(a) plaintiff’s counsel “shall not . . . obstruct another party’s access to evidence.”
• While a treater can choose to include plaintiff’s counsel, “Rule 3.4(f) does not permit the lawyer to request that the witness make [that] particular decision.”
• If any legal limitations remain (privacy or privilege rights, to the extent not waived by plaintiff’s bringing suit, would be the prime example) counsel may “demand that the treating physician comply” with those limitations.
• Except when treaters have their own counsel, attorneys must ethically treat them as they would any other unrepresented person.

While this particular ruling only binds DC lawyers or lawyers practicing there, the bar committee was dealing with a rule that we don’t think differs all that much from jurisdiction to jurisdiction.  Thus, the same ethical rationale appears to have force in any jurisdiction where the factual prerequisites of the first bullet point (informal interviews OK; the legal proceeding exception to HIPAA applies; discovery as allowed by the court) are present.  Plaintiffs’ lawyers who nonetheless attempt to interfere with informal interviews in such circumstances thus do so at their peril.

An Oldie But Goodie

We’ve always been interested in being allowed to have informal (sometimes called “ex parte”) interviews with treating physicians of the plaintiffs.  We think they’re fact witnesses (the most important ones in many, if not most, cases) and that by filing a personal injury lawsuit a plaintiff waives any expectation of physician/patient confidentiality as to the injuries being claimed and their treatment.


Good treating physician testimony can also win a case in and of itself – on the basis of no causation of any purported warning defect under the learned intermediary rule.

We’ve been sufficiently interested in the informal interview question that in late 2008, we even prepared our own 50-state survey of what we understood the states’ law to be on the subject.

Little did we know.

Well, it pays to keep our eyes open.  Just the other day the court in the Aredia/Zometa MDL released a valedictory of sorts – an order summarizing that MDL’s activity for the benefit of judges in remand cases.  In re Aredia & Zometa Products Liability Litigation, 2011 WL 2182824 (M.D. Tenn. June 3, 2011). We got word of this because the court mentioned its Buckman decisions on fraud on the FDA claims.  Buckman citations tend to be interesting, so we have a search that looks for them.

But that wasn’t what caught our eyes when we skimmed through the order.  Rather, our interest was piqued when the court stated:

In each case placed in a wave for discovery, Defendant and Plaintiffs were entitled to conduct fifteen depositions of non-parties per the CMO.  This number includes treating physicians.  The Court held that treating physicians are fact witness to which both parties should have access.  See Docket No. 1094.  Accordingly, NPC could engage in ex parte communications with treating physicians as set forth in the Order.

Id. at *4 (emphasis added).

Whoa!  We’d never gotten wind of that.  A ruling in a major MDL that “treating physicians are fact witness to which both parties should have access”?  Heck, when a court in a single case made a similar ruling, that merited its own post.  See Weiss v. Astellas Pharma, US, Inc., 2007 WL 2137782 (E.D. Ky. July 23, 2007).  But a whole MDL?  And here we were, sitting around ignorant.

Not for long.

We searched Westlaw.  Nothing.  We searched Lexis.  Nothing.  Did that stop us?  No.  We have a PACER account and we’re not afraid to use it.

So here it is, three years late but better late than never.  We start with the general ruling:

The simple conclusion is that Plaintiffs’ treating physicians are fact witnesses and Plaintiffs’ counsel is not entitled to restrict access to these witnesses.  Further, it is clear and undisputed that Plaintiffs’ counsel themselves have participated in ex parte communications with these witnesses.  The Magistrate Judge stresses that no party has an exclusive right to any witness.  Additionally, the Magistrate Judge fully agrees with Novartis that allowing ex parte communications with the literally hundreds of physicians in this litigation would allow for more expeditious trial preparation as it would enable Novartis to efficiently determine which physicians need to be formally deposed.  This would assist all parties in determining which physicians’ testimony would be relevant at trial.

In re Aredia & Zometa Products Liability Litigation, No. 3:06-MD-1760, slip op. at 2 (M.D. Tenn. Jan. 17, 2008) (doc #1094).

This ruling says three things that we’ve pointed out about informal physician interviews:  (1) doctors are fact witnesses and should be equally available to both sides, (2) whenever defendants’ interview rights are restricted, plaintiffs cheat, and (3) informal interviews are quicker and less costly than requiring formal depositions in all cases.

The court (technically a magistrate) ultimately decides, as a matter of comity, not to allow informal interviews where they would not be available under that state’s law.  Slip op. at 4. We’d say that under Erie, federal courts are not bound by state procedural rules (only substantive privileges or ethical rules), but we’ll take what we can get.

The court also goes through a shorthand state-by-state analysis, slip op. at 3-7 that resembles we did later in our 50-state-survey.  Heck, if we’d known about this, we would have grabbed up the Aredia/Zometa parties’ briefs on the subject and saved ourselves a lot of work.

Anyway, we hope our readers are as interested as we were in this discovery.  We’ve sent the slip opinion on to Westlaw. It will probably show up there in a week or two.

Note:  The WL citation is 2008 WL 8576167