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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.