We recently saw another decision allowing defendants in mass tort litigation to retain as defense experts doctors who also treated plaintiffs. In Re: Zimmer NexGen Knee Implant Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 117238 (N. D. Ill. Aug. 16, 2012). The NexGen MDL court rejected some of plaintiffs’ familiar arguments, including that defendants would improperly influence the doctors’ testimony as fact witnesses in their own patients’ cases and that treaters serving as defense experts somehow violate fiduciary obligations to the patient. Id. at *31, 34.
The court was influenced, instead, by the defendants’ proposed order, which set out the circumstances under which the defense could retain treaters as experts:
Defendants propose that their contact with Plaintiffs’ treating physicians should be permitted, subject to an order limiting contact with prospective expert witnesses who are also treating physicians of individual plaintiffs as follows:
1. Zimmer’s counsel will not communicate with physician-expert about any of his or her patients who are plaintiffs in this MDL.
2. Zimmer and its counsel may not use a physician as a consulting or testifying expert in a case where that physician’s present or former patient is a plaintiff in that particular case.
3. Before having any substantive communication with a prospective physician-expert, Zimmer’s counsel will provide the treating physician with this Order and will secure the treating physician’s written acknowledgment that he or she has read the attached Memorandum to Physicians [not attached to the opinion], except that [an] expert[ ] retained as of the date of this Order shall be provided with this Order within thirty (30) days, and shall provide written acknowledgment that he or she has read the attached Memorandum to Physicians.
Id. at *10-11.
We should note that the court also rejected a key (and incorrect) argument often made by plaintiffs – that the defense’s access to treating doctors for ex parte informal discovery is restricted to some extent by the physician-patient privilege. It is not. That privilege is waived the moment plaintiff files suit. The MDL court sided with courts holding that state privilege law doesn’t apply and neither does state-law restricting the defense conducting ex parte treater discovery. It’s not a privilege issue. It’s about available methods of discovery under federal law:
These courts recognize that a state’s law of privilege applies in diversity actions, but they conclude that a plaintiff waives the physician-patient privilege as to all matters relevant to the case by putting his or her medical condition at issue. Thus, state law banning ex parte communications between defense counsel and a plaintiff’s treating physician merely governs the method of discovery, not the operation of the privilege. . . .
The ex parte rule shares certain public policy goals with the law of privilege, but [any state] rule [banning ex parte discovery] operates by imposing restrictions on the methods of discovery–traditionally a matter within the broad discretion of the district court. The Federal Rules of Civil Procedure do not directly address the matter of ex parte contacts at issue in this case, but those rules do empower the court to “regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local rules.”
Id. at *18-21. The court used that power to allow the defense to retain treaters as experts.
Now, we think that decision was an easy one. There would be no semblance of fairness in allowing Plaintiffs in mass torts to have potential access to the entire pool of the most active and involved experts while restricting the defense’s access.
But maybe more important is that plaintiffs’ attorneys should not have the advantage of one-sided access to treating doctors before their fact depositions or trial testimony. For those of us who have taken treater depositions after the doctor had an ex parte “meeting” with plaintiff’s lawyer, we know the usefulness that such a meeting can have and the unfairness it can create if only one side has the opportunity to request such a meeting.
While this wasn’t at issue in the NexGen decision, the court’s opinion nonetheless offered helpful language that could apply. Plaintiff argued that the evidence or testimony given by a treater as to her or his patient might be unfairly influenced by the defense if the defense had also hired that treater as an expert. In other words, the plaintiffs – who have no restrictions on access to treaters – wanted the treaters for themselves. The court rejected this reasoning:
As a general proposition . . . no party to litigation has anything resembling a proprietary right to any witness’s evidence. Absent a privilege no party is entitled to restrict any opponent’s access to a witness, however partial or important to him, by insisting on some notion of allegiance. . . . Unless impeded by privilege an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows . . . . [W]hile the Federal Rules of Civil Procedure have provided certain specific formal methods of acquiring evidence from recalcitrant sources by compulsion, they have never been thought to preclude the use of such venerable, if informal, discovery techniques as the ex parte interview of a witness who is willing to speak.
Id. at *31-32 (quoting Doe v. Eli Lilly & Co, 99 F.R.D. 126, 128 (D.D.C. 1983)).
Similarly, the court addressed the notion that a treater serving as an expert witness for the defense would somehow violate a fiduciary duty to her patient/plaintiff, a duty that supposedly involved assisting the plaintiff in litigation. Id. at * 34. If you recall, New Jersey’s Appellate Division recently rejected this very same argument. We wrote about it here. The NexGen MDL court rejected it too. The treater’s duty in litigation is not to help one side. It’s to tell the truth: “[A]s imposed by law, the physician’s duties in litigation are to cooperate procedurally when called upon and to provide truthful information.” Id. at * 36 (citing In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 188 (App. Div. 2012).
We think these points support more than allowing the defense to retain treaters as experts. They help establish that when doctor-patient privilege is not an issue – and it clearly isn’t in these types of mass torts – one side of the litigation shouldn’t have a unilateral right to informal discovery from key witnesses. Both sides should have such access.