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This post is from the non-Reed Smith side of the blog.

The issue of the of plaintiffs’ ability to have unfettered ex parte conversations with treating and prescribing doctors before those doctors are deposed as critical fact witnesses is litigated in just about every mass tort and has been for decades. This has remained a hotly contested issue for two primary reasons.  First, in most mass torts where plaintiffs are permitted unrestricted access to the physicians, defendants are not afforded the same.  Second, plaintiffs’ counsel are not just interviewing the doctors about their care and treatment of the plaintiffs. They preview to the doctors litigation strategies and themes, they provide the doctors with internal company documents of a type that no doctor would ever see in the ordinary course of his/her medical practice. In the past, we’ve talked about this imbalance as creating an uneven playing field for the defendants. More recently, the ex parte contacts issue has been likened to “woodshedding” – the process by which plaintiffs seek to unfairly coach or prejudice a witness during ex parte communications. And we don’t disagree with the courts that see it that way and therefore impose restrictions or limitations on such communications.

Unfortunately, that’s not how the court in In re: Xarelto Products Liability Litigation, 2016 U.S. Dist. LEXIS 30822 (E.D.La. Mar. 9, 2016) saw it.  Defendants filed a motion seeking to limit plaintiffs’ counsel’s ex parte communications with plaintiffs’ treaters to “diagnosis and treatment of the plaintiff and plaintiff’s medical condition.”  Id. at *4.  That’s a balanced approach that does not interfere with the patient-physician relationship – one of plaintiffs’ primary arguments against a complete ban on all ex parte doctor communications – while simultaneously protecting both sides from prejudice down the road. Indeed the defense proposal also banned defendants from the exact same type of ex parte contact with physicians even though under certain states’ laws it would be allowed.  Id. In other words, defendants were willing to forego all ex parte communications for an even-handed rule that allowed plaintiffs communications commensurate with the extent of the patient-physician privilege.

The court however was unpersuaded. The opinion focuses on two things.  First, the court found a lack of justification for the requested limitation.  Because there was no evidence of woodshedding, the court wouldn’t impose a rule to make sure woodshedding wouldn’t happen.  Id. at *11.  We guess that means that defendants will have to come back and ask the court to shut the barn door after some of the horses escape.

Second, the court did not believe that defendants’ proposal reasonably could be enforced.  Id.  The court re-framed defendants’ ask as a request to “sanitize” all advocacy from the plaintiffs’ counsel’s discussions with the treaters, id. at *12, and therefore concluded that it didn’t believe it was possible to parse the “individual sentences” used by plaintiffs’ counsel. But that wasn’t the requested relief.  Defendants aren’t naïve.  We know that even discussions of plaintiffs’ care and treatment most likely will be done in a leading way.  We don’t expect plaintiffs’ counsel not to be advocates.  The Xarelto defendants asked for plaintiffs not to discuss things like internal-company documents produced by defendants, liability issues, defendant’s conduct – things which are wholly outside the realm of the doctors’ role as fact witnesses regarding plaintiffs’ care and treatment.  And things which can be monitored.

The court also cited conflicts between state and federal cases as a reason for not granting the defendants’ requested order. Id. at *13.  But that’s true of any ruling in any litigation pending in multiple jurisdictions. What about the court’s ruling prohibiting defendants from having ex parte contacts with treaters (offered as a compromise position if the court didn’t want to limit plaintiffs’ contacts).  Id. at *16.  Certainly that conflicts with the law of states where defendants are permitted to have ex parte contacts with the treating physicians.  Surely issues of policing the differences will arise and the various courts will have to deal with them.  Doesn’t ring true as a reason for entering an even-handed ruling in this case.

So, what’s the court’s answer to the uneven playing field it is allowing – cross-examination.  Id. at *18.  Cross-examination in the presence of opposing counsel who will undoubtedly object to the form of the questions being asked, who will assuredly interject themselves into the questioning, who will be able to immediately conduct their own examination. Cross-examination without the benefit of the information plaintiffs’ lawyers are able to get through the informal and ex parte process.  Plaintiffs’ counsel doesn’t have to conduct their discovery deposition on the record because they get a chance to do it in private.  Cross-examination doesn’t level the field.

Nor does disclosure and production either, really. It’s another instance of closing the barn door after the horses are loose.  Plaintiffs have had their chance to prime the doctors, now defendants just get to know what they used to do that.  Don’t get us wrong, if the ex parte meetings are going to be allowed we want the discovery.  We just don’t think it’s enough.  The proposal made by defendants struck an appropriate balance between allowing plaintiffs’ counsel access to their client’s doctors and preventing woodshedding.  A compromise that would permit doctors to come to testify in the litigation unbiased and with neither party gaining an unfair advantage.

Defendants were granted permission to contact treaters as potential experts with the usual caveats that any discussions not concern the patients being treated by the doctor and defendants can’t use a doctor as an expert in a case involving that doctor’s patient.  Id. at *23-27.  That’s good, but it doesn’t override the imbalance generated by the rest of the court’s decision.