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There is quite a bit of discussion these days about protocols. Using good judgment in setting how often you should wash your hands, what measures should be in place for a certain type of business to operate, how often to test for infection and/or antibodies, and many other protocols seems like a no-brainer. We will refrain from explaining our, shall we say, dismay at how often debate about such protocols seems to include considerations that should not be considered, as it were. We need not dance around our feelings about protocols for ex parte contact and depositions of treating physicians. Setting aside our own cases—for obvious reasons—we can say that the protocols in MDLs and various versions of coordinated proceedings tend to favor the plaintiffs, particularly those with counsel who are willing to push the limits or blow right by them without consequence.

McLaughlin v. Bayer Essure, Inc., No. 14-7315, 2020 U.S. Dist. LEXIS 79769 (E.D. Pa. Apr. 13, 2020), is not from an MDL but from a coordinated proceeding of related cases relating to a contraceptive device. That may be why a Special Discovery Master was appointed under Fed. R. Civ. P. 53 and was issuing a Report and Recommendation on what the protocol would be for treating physician depositions. The parties had submitted dueling proposals on ex parte contact with these expected deponents and the order of questioning in the depositions. What resulted was an R&R that was short and pretty sensible, something we do not always see when setting the rules for these depositions. Not to go out on a limb, but these depositions tend to be really important in medical product cases. This is particularly so when the doctors (or other healthcare providers) are not coming live to trial, so the depositions provide the universe of evidence from these witnesses. Juries may disregard what paid experts say about medical issues and go with what the “independent” treaters say. For prescription products, what the prescriber says about whether she knew enough to decide to use the product with the plaintiff and whether she would have done anything different with a different warn is critical to at least one claim. These are not novel or insightful observations. Nor is the observation that the woodshedding of a witness—“horseshedding” per McLaughlin, a term we had not heard before—can really matter. Who goes first—and last—can also matter, although less.

Plaintiffs proposed what you might expect: plaintiffs’ counsel get to talk to willing healthcare providers about whatever they want ex parte; defense counsel do not get to talk to them at all; and, when a deposition occurs, plaintiffs’ counsel get to ask questions first and defense counsel can ask about the ex parte contact without any prior production or identification of what documents were given/shown to the deponent as part of the ex parte contact. Id. at **2-3. They stopped short of proposing to preclude defense counsel from asking any questions at the deposition or make them pay for a share of the costs of the ex parte party, like the snacks or beverages. Defendants proposed that both sides should be allowed to have ex parte contact, that such contact could not address “liability issues” and documents beyond medical records and product warnings, that such contact be disclosed prior to deposition, and that whichever party noticed a deposition should get to go first. Id. at **3-4. The R&R came down somewhere in the middle, but that resulted in a fairer overall protocol than we often see.

The R&R started with one observation and three principles. First, these were cases with healthcare providers outside of the trial subpoena power of the ED Pa, so the depositions would be “trial depositions.” Id. at **1-2. Second, under Fed. R. Civ. P. 30(c)(1), “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.” Id. at *2. Third, plaintiffs had waived their physician-patient privilege by bringing lawsuits about their physical and mental condition. Id. Fourth, there is nothing privileged about a lawyer talking to a third party. Id.

Recognizing that “the danger of excessive and unethical horseshedding exists in EVERY ex parte communication between counsel and any witness, particularly including the client” and the lack of consistency in court rulings on what to do about this risk, the Master attempted to be fair to both sides (and the potential deponents). Id. at *5 (emphasis in original).

The Special Discovery Master sees no reason for the court to depart from the usual practice of letting counsel for BOTH sides meet with prospective deponents pre-deposition where the deponents consent.

Id. at *6 (emphasis in original and internal citation omitted). This rejected plaintiffs’ argument that defense counsel could not talk to healthcare providers outside of a deposition, an argument relying in part on “a rather novel, physician-patient HIPPA [sic] privilege ‘penumbra’ (for lack of a better term) which [purportedly] applies even though the privilege is waived.” Id. at *7. (See this ancient post and this not-so-ancient one.)  Consideration of “equality of access to critical evidence, avoidance of surprise,” and the general purpose of Federal Rules of Civil Procedure was enough to allow defense counsel to “enjoy their traditional access to the treating physicians on the same terms . . . as Plaintiffs.” Id. at **7-8. This is a provision any drug or defense defendant would likely accept.

The next issue, at least as we are presenting them, was what those terms would be in terms of the scope and disclosure of any ex parte contact. In terms of scope,

the Special Discovery Master rejects the imposition of the limitations on such communications proposed by Defendants. Indeed the limitations proposed by Defendants would preclude Plaintiffs’ counsel from discussing key issues in the case to which the physicians are privy, including medical malpractice, negligent training, failure to warn, and alternative treatments that may have been considered to name a few.

Id. at *6. It does look like some of these topics would not have been precluded by the Defendants’ proposal, but we still hazard that many defendants would take the possibility of free-range ex parte contact by both sides over plaintiffs have limits on their exclusive contact that may be hard to police. Of course, it could be that a physician, presented with the choice of two ex parte meetings and a deposition or no ex parte meetings and a deposition might go the route of less time commitment. A witness who does not subject herself to any potential woodshedding—or horseshedding—may be disinclined to speculate in deposition about things like what corporate documents and snippets of corporate deposition testimony mean. Similarly, the requirement that any ex parte meetings with a treating physician be disclosed at least 72 hours before a deposition, including with “a list of all materials shared with the treating physician,” may both discourage bad behavior by counsel and encourage the deponent to play it straight.

The last issue to decide in the R&R was the order of questioning in depositions of treating physician depositions. In this instance, the usual practice that the party that notices the deposition gets to go first did not hold. The logic for this was that, at trial, the plaintiffs would be expected “to call every treating physician (even if less than 100% favorable) to make a prima facie case.” Id. at **8-9. Given what was noted about 30(c)(1) above, this was enough to propose that “Plaintiffs’ counsel has priority of questioning the depositions of the treating physicians as they would at trial.” Id. at *9. Our experience in trials in drug and device litigation, including of cases where treaters are within trial subpoena range, is that plenty of plaintiffs hope the jury never hears from certain treaters and, if they do testify, would prefer to go after them on cross. So, we think the premise of this particular recommendation is a bit flawed. On the other hand, many defense lawyers might prefer to go second in treater deposition for a range of reasons we will not share here. Even if that is not the case, the order of questioning will generally not be as important as whether plaintiffs’ counsel has had exclusive, unfettered access to the witness before the deposition starts.