Interesting new decision out of the Asbestos MDL the other day, In re Asbestos Products Liability Litigation (No. VI), 2009 WL 466381 (E.D. Pa. Feb. 25, 2009). The asbestos defendants largely defeated a motion to quash their subpoenae (“ae” is Latin for “s”) for documents from doctors who had purported to diagnose asbestos-related conditions in probably thousands of plaintiffs.

We see the same phenomenon in a number of the larger MDLs. The same doctors file virtually the same largely conclusory reports diagnosing whatever the relevant condition is in scads of plaintiffs. When these diagnoses are reviewed, 99% of them turn out to be questionable at best.

Well, the asbestos MDL defendants (or some of them) fought back, and subpoenaed these doctors’ “screening medical documents.” 2009 WL 466381, at *1. The doctors tried to hide behind HIPAA, the physician/patient privilege, and their supposed status as “consulting experts” exempt from discovery under F.R. Civ. P. 26(b)(4)(B).

Didn’t work.

First the court determined that, as an MDL judge, it had jurisdiction to rule on motions to quash subpoenae anywhere in the country. MDL junkies will like the discussion of MDL power versus F.R. Civ. P. 45. Bottom line, “[t]o hold that a court presiding over an MDL case could not enforce a motion to compel would hamper the ability of an MDL court to coordinate and consolidate pretrial proceedings.” 2009 WL 466381, at *2.

Then the fun begins. The assembly-line doctors tried to claim that the records of their screening tests were protected by the patient privacy provisions of HIPAA. That got shot down in flames. “Because [the subpoenaed doctors] did not provide physician services to plaintiffs, they are not covered entities under HIPAA and, therefore, HIPAA does not prevent enforcement of the subpoenas.” Id.

The physician/patient privilege failed for the same reason. These doctors were acting as litigation consultants, not real doctors:

[The doctor] was not consulted by the Plaintiffs in order to provide treatment. Rather, he was consulted by Plaintiffs to provide a diagnosis, which would be relied upon by the individual Plaintiffs to support a personal injury claim. Therefore, under the circumstances, no physician-patient privilege attached to the information obtained from Plaintiffs. . .during the screening examinations.

Id. Further, even if there had been a privilege, it was waived. “When a patient uses a physician’s diagnosis in litigation, the patient places the essence of this information at issue, effectively waiving physician-patient privilege.” Id. at *3 (multiple citations omitted).

Finally, the court refused to let doctors whose diagnoses were the only reason the plaintiffs could be in court evade discovery concerning that diagnosis by masquerading as “consulting experts” under Rule 26:

[T]he only evidence of the scope and nature of Plaintiffs’ injuries are the reports made by [the doctors] in the course of their screening examinations of Plaintiffs. These diagnostics constitute the Doctors’ opinion as to whether the Plaintiffs they examined were afflicted with an asbestos related disease or malignancy. Without the Doctors’ opinions, the diagnostic reports are meaningless. By producing and relying upon the opinion of the Doctors, the Plaintiffs have, de facto, designated the Doctors as expert witnesses in this case. Plaintiffs, having produced and relied upon the opinions of [the doctors] in this litigation, cannot now claim that [they] are non-testifying experts entitled to the consulting expert privilege.

Id. at *4. The court found In re Silica Products Liability Litigation, 398 F. Supp.2d 563(S.D. Tex. 2005) – that’s the case that exposed the silicosis diagnosis racket – to be directly on point.

So if there’s funny business happening with qualifying diagnoses in a mass tort, Asbestos provides a road map for going to the core of the problem and exposing the grounds for these diagnoses to the light of day (and to a Daubert motion, at the very least).

There are a couple of cautionary notes as to procedure: (1) only try for documents relevant to the plaintiffs in the litigation, 2009 WL 466381, at *4-5; (2) make sure you serve opposing counsel with subpoena at the same time as the targeted docs. Id. at *5. Beyond that, if defendants think that there’s dodgy diagnosing going on, they have the right to go to the source.

That’s something nice to know, although one might think it would go without saying.

As we said recently in another context, it might come as a shock to the other side, but mass tort defendants have the right to defend themselves.