Check here for our prior posts on this subject and you’ll quickly see the overarching theme. We’ve called it leveling the playing field. In any personal injury lawsuit, treating physicians are probably the most important non-party witnesses. As such, we on the defense side believe, and strongly advocate for, access to these witnesses equal to that afforded plaintiff’s counsel. Despite what we consider well-reasoned, logical, and legally sound arguments in support of allowing both plaintiffs and defendants to communicate informally with treating physicians, there are still numerous jurisdictions where defendants are prohibited from having such contact. (see 50-state chart)
New Jersey, however, is not such a state. In Stempler v. Speidell, 495 A.2d 857 (N.J. 1985), the New Jersey Supreme Court unanimously affirmed the right of defendants in personal injury cases to seek informal interviews with doctors who had treated the plaintiff, if such treaters were willing, and as long as notification was provided to opposing counsel. See id. at 864-65. In practice, however, informal interviews of treating physicians by defendants in mass torts have been few and far
between. See here regarding post-Stempler history in mass torts. In those cases, each court had its reasons for denying Stempler interviews, and while we may not agree with all of them, our real issue – if we haven’t beaten you over the head with it enough – is balance.
And, a recent New Jersey decision seeks to establish some of the balance we’ve been craving. The decision comes from In re Pelvic Mesh/Gynecare Litig., No. ATL-L-6341-10, slip op. (N.J. Super. Law Div. Dec. 3, 2013). Not having ex parte access to the plaintiffs’ treaters, defendants sought to limit the scope of plaintiff’s counsel’s ex parte communications. Defendants sought an order prohibiting plaintiff’s counsel from “providing to and/or discussing with plaintiffs’ treating physicians the contents of any documents produced by defendants.” Slip op. at 2. Rather, plaintiffs’ counsel should limit their communications to the care and treatment they provided and plaintiffs’ medical condition. Id.
It appears that plaintiff’s primary argument in opposition to such a protective order was that defendants’ sales representatives have presented “misleading information to the physicians” and that plaintiffs’ counsel “have a right to educate the medical community,” including showing them documents they have never seen. Id. at 4 & 5. As you can imagine, we
certainly take issue with the notion that plaintiffs’ counsel are the proper individuals to “educate” doctors. We’d prefer that was left to medical schools, medical journals, medical seminars, etc. And, we’d have to say that comparing a 3 minute hallway walk-by by a sales representative to a scheduled sit-down appointment with plaintiffs’ counsel (someone who has a vested interest in the litigation) is a bit like apples and oranges.
Before reaching its ultimate conclusion, the court made two preliminary but important findings. First, it is not unusual for courts to limit plaintiffs’ counsel’s communications with treating physicians to case-specific medical information and “prohibit ex parte discussions involving legal theory.” Id. at 3 (citing such rulings in other mass torts). Second, “[t]reating physicians are a unique type of witness.” Id. at 4.
They are fact witnesses who can describe the basic facts such as medical history symptoms, the type of treatment given and the patient’s response, but they also give expert testimony even when the treating doctors are not retained as experts. . . In a product liability case involving the use of a drug or medical device, the questioning about the doctor’s knowledge and use of the product in question is much more complicated than in most personal injury cases.
Id. at 4-5. It is their uniqueness and importance that makes evenhanded access to treating physicians so critical.
With this as a backdrop, the court’s decision is grounded in its “primary goal . . . to ensure that no witnesses are unduly swayed by either side to modify their testimony.” Id. at 6. Balance, balance, balance. Therefore, the court limited plaintiffs’ counsel’s ex parte communications with plaintiffs’ treaters “to discussions of the facts of treatment that the given treating physician provided to the given plaintiff and the plaintiff’s medical condition and history.” Id. The decision is explicit:
All pre-deposition communications by plaintiffs’ counsel shall be limited to the facts of the specific patient’s history and treatment, the understanding of the doctor of the products used on the patient at the time they were used and opinions on prognosis, diagnosis and causation during the doctor’s treatment of the patient/plaintiff.
Id. at 7.
More importantly, the discussion cannot include:
(1) [treaters’] understanding of the risks and benefits of pelvic mesh products except as to what they knew and understood about when they used a particular product on the particular patient; (2) their past and present use of pelvic mesh products in general; (3) the risk and benefit information they received from agents or sales representatives of the defendants; (4) scientific literature, seminars, warnings or other tools the doctor used to obtain knowledge about the risks and benefits of the products; (5) theories of liability of the plaintiffs in the pelvic mesh litigation.
Id. at 6. In other words, plaintiffs’ counsel doesn’t have a “right to educate the medical community.”
The decision also prohibits plaintiffs’ counsel from “showing the treating doctor any depositions or internal documents produced by defendants or scientific studies or literature prior to the deposition of the treating doctor.” Id. The court found that these may be fair game at the doctor’s deposition, but not before and not ex parte. More balance.
The prohibition on discussing the litigation or legal theories with treaters extends equally to defendants’ “sales people, detail people or other representatives of the defendants.” Their communications with treaters must be limited to the pelvic mesh product they are “currently selling or attempting to sell to the doctor.” Id. at 6-7. Even more balance.
Finally, there is one exception. These limitations don’t apply to either side if they have retained a treating physician as an expert. Id.