This post comes from the Cozen O’Connor side of the blog.

Drug and device lawsuits fling open the plaintiffs’ medicine cabinet and slide open the drawers to their doctors’ file cabinets. Everything is in play: the plaintiff’s disease state, the alleged side effects, the revision surgery, all the pre-existing conditions, the risk factors, the medication history, medical histories (pre-and-post event), all the doctors, and more. In almost every mass tort drug or device case we’ve handled, plaintiffs provide records for all of this. In fact, one of the first things that courts managing mass tort drug and device cases do is order plaintiffs, as a matter of course, to provide a profile or data sheet laying out this information.

The hip-replacement plaintiff in Raab v. Smith & Nephew, Inc. 2016 U.S. Dist. LEXIS 59185 (S.D.W.V. May 4, 2016), wanted to provide less. She objected to discovery of two medical providers and all her medical insurance coverage, arguing that her gynecologist and plastic surgeon had no information relevant to her hip issues and that her insurance coverage provided only irrelevant collateral source information. Id. at *3-7. She claimed to have otherwise produced enough information about her doctors and medical treatment, using catch-phrases such as “carte blanche” and “fishing expedition” to describe defendant’s efforts to get more. Id. at *5, 7.

And she lost. While the court acknowledged that these arguments might work to limit discovery under FRCP 26 in certain cases, plaintiff’s medical device claim was not one of them. Id. at *8. The claim itself placed her medical care and medical condition squarely at issue, which could easily implicate every aspect of her medical treatment. But her claims of physical injury and emotional and stress-related damages only further broadened the defendants’ need for already broad discovery into her medical history:

Plaintiffs have claimed a variety of damages as a result of [Smith & Nephew’s] allegedly defective joint replacement components, including physical injury, pain, suffering, mental anguish, emotional distress, and damage to the marital relationship. Given the broad nature of the damage claims asserted by Plaintiffs, S&N is entitled to broad discovery of Ms. Raab’s medical and emotional history.

Id. at *8.

Plaintiff also argued that, after providing information on seventeen of her doctors, she shouldn’t have to provide any more. Id. at *5. That isn’t the test. The test is whether the information is relevant to plaintiff’s claims and its discovery is proportional to the needs of the case. Here, information from her gynecologist and plastic surgeon could easily address her bone quality, health status, and emotional state. Moreover, adding only two doctors certainly seems proportional. Just as important, plaintiff provided no evidence to suggest that her gynecological and plastic surgery history had no relevant evidence:

Plaintiffs have not provided any information regarding the nature of Ms. Raab’s plastic surgery or gynecologic treatment that would clearly demonstrate the irrelevancy of that care. Plaintiffs have not moved for a protective order, nor have they demonstrated that providing the requested information would be disproportional to the needs of the case.

Id. at *9. The court therefore ordered plaintiff to provide information as to all of her medical providers, not just those she had unilaterally selected. Id.

Plaintiff’s effort to block her insurance coverage from discovery fared no better. Collateral source rule or not, the insurance records will provide information on plaintiff’s medical care and her medical condition, including the need for disability benefits. This information cuts across all aspects of her claims. Even information about collateral source payments could be relevant to damages and, perhaps, credibility:

In this case, while some of the information requested by S&N may be collateral source data, the remaining information deals with other claims related to medical care, disability benefits, and the like filed by Ms. Raab in the past ten years. Certainly, in view of Plaintiff’s physical injury, emotional distress, and lost wages claims, materials related to disability and unemployment benefits sought or received by Plaintiffs are relevant, as is evidence of Ms. Raab’s medical claims and treatment. To the extent materials reflect payments by collateral sources and may not be admissible, those materials may still be relevant to issues of credibility and damages and, thus, are discoverable barring other exceptions.

Id. at *10-11. The court ordered plaintiff to produce this information as well.

We see this as an easy call. Frankly, there are additional reasons to produce these records. Each medical provider records a medical history and history of medication, and experience tells us that each doctor’s history is rarely complete or the same as that of other doctors, making a full set of medical records necessary. Each doctor must also consider the plaintiff’s disease states and ongoing treatment by other medical providers when determining her or his own treatment. And, so, even doctors not directly treating a plaintiff’s disease state or the claimed side effect will have relevant information in their records. Our experience also tells us that plaintiffs’ own recollections of their medical histories, even the identities of their own doctors, are rarely complete, and getting medical and insurance records is necessary to fill in those gaping holes. Moreover, all medical providers are likely to have information on risk factors or pre-existing injuries.

There may be cases in which discovery of medical information can be somewhat limited. But those instances are few and far between in drug or medical device cases. And, like in Raab, a plaintiff who tries to limit that discovery will, and should, almost always lose.