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In prescription medical product liability litigation, both sides invest a lot in their expert witnesses.  In addition to spending time, money, and effort, we work out our legal theories with our experts, and share with them our views of the facts, both good facts and bad facts.  Thus, when the other side inveigles one of ours to switch sides – usually with the promise of a lot more money for a lot more testimony – the result can be a lot of collateral litigation.

We’ve blogged a couple of times before about turncoat experts, so the recent decision in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our interest.  Then we discovered that Hawkins was only the most recent of several decisions barring testimony by the same turncoat expert – one Stephen Li – due to his prior employment with the same defendant concerning product liability litigation involving the same product (and other similar products, as well).  See also King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); but see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023).  We note that a couple of other decisions (both precluding Dr. Li from testifying) apparently exist, but because they are either oral or under seal, we have not seen and do not discuss them.  The plaintiffs in those cases were named Sheehy and England.

Hawkins provides a good description of what happened and when:

  • Early 1990 – defense counsel first engaged Dr. Li in connection with litigation “involving various hip devices”;
  • 1990s – 2015 – Dr. Li was defendant’s “principal outside consultant and testifying expert” in hip implant litigation “particularly on cases involving polyethylene performance”;
  • 2010 – Dr. Li first consulted by defense counsel concerning “MoM [metal-on-metal] hip replacement” litigation;
  • 2010 – Dr. Li told defense counsel he had been “approached” by the other side to “serve as an expert witness,” but had “decline[d]”’;
  • October 2010 – Dr. Li discussed a particular device and “MoM hips more generally, as he anticipated [his client] might also want to use Dr. Li as an expert in the litigation involving” the device in the Hawkins and other cases; “much of the discussion was applicable to both . . . devices”;
  • 2011 – MoM implant discussions continued “periodically” with Dr. Li, mostly dealing with “matters specific” to litigation involving the device in the Hawkins and other cases;
  • August 2011 – defense counsel met with Dr. Li “to focus on understanding and developing defenses to issues being raised by Plaintiffs, and in the scientific and medical literature regarding” the device at issue, “discuss[ing] in detail [various] defense strategies . . . to respond to the evolving scientific and medical literature”;
  • October 2013 – another meeting with Dr. Li that “was very helpful in the development and support of [the defendant’s] defense themes”;
  • 2013 – 2015 – “occasional[]” communications between defense counsel and Dr. Li concerning litigation involving device in question;
  • August 2015 – Dr. Li refused defense counsel’s request to “review and critique” a plaintiffs’ expert’s report because of his “personal, professional and financial relationships with” that expert;
  • After August 2015 – Defense counsel “suspend[ed] consulting with Dr. Li about MoM products, but neither side “formally terminated the consultancy.”

Hawkins, 2023 WL 7292164, at *2-3 (citations omitted).  All told, the defendant, through counsel, paid Dr. Li over $23,000 solely “for his expert services relating to” the device at issue.  Id. at *3.

Dr. Li, of course, had his own spin on what happened, id. at *3, but his take was contrary to contemporaneous documents and thus not persuasive in Hawkins or any other of the available decisions supporting his exclusion.  Even in Winkelmeyer, where exclusion was denied, the decision was based on a technicality.  2023 WL 2974480, at *1 (defendant “did not supply or offer to supply in its original motion papers the documents it has now submitted for in camera review”) (footnote omitted).  Every decision that considered both sides’ arguments fully has, on the merits, held that the turncoat Dr. Li would not be allowed to testify.

As held in Hawkins, the “drastic measure” of expert disqualification was appropriate because the defendant both had a “reasonable” belief that “it had a confidential relationship with the expert” and the turncoat expert had “received confidential information relevant to the current litigation.”  2023 WL 7292164, at *4 (citation omitted).  The moving defendant in Hawkins satisfied this test with the above evidence of “specific and unambiguous disclosures that if revealed would prejudice the party.”  Id. (citation and quotation marks omitted).

Hawkins held, first, that a confidential relationship had existed (through counsel) between the defendant and Dr. Li prior to his attempt to switch sides.  There had been “three in-person meetings and other periodic discussions relating, at least in part, to” litigation involving the device at issue in Hawkins.  2023 WL 7292164, at *5.  During these encounters they discussed “science and engineering . . ., as well legal strategy and defenses concerning litigation involving” the implant at issue.  Id.  The evidence thus “establish[ed] that defense litigation strategy concerning the [device at issue] was a clear focus of [defense] counsel’s communications with Dr. Li,” id., for which he was compensated.  Id. at *6.  “It [wa]s also evident . . . that the relationship between counsel and Dr. Li was undertaken consistent with rules of ethics and confidentiality.”  Id.  Thus, it was “clear” that the defendant’s “counsel relied on Dr. Li to develop defenses and litigation strategy in [this] litigation.”  Id.

The information discussed with Dr. Li was also confidential – “readily identified” as “attorney work product” and “within the scope of the attorney-client privilege.”  Id. (citations and quotation marks omitted).  The record contained “numerous examples of the topics that [defense counsel] discussed with Dr. Li” that, in Hawkins, showed up in his expert report for the plaintiff.  Id.

[P]rior to rendering expert opinions for Plaintiffs, Dr. Li had already received, contributed to, and helped formulate the defense positions and strategies that relate to the very points and opinions he now renders for Plaintiffs in this litigation.

Hawkins, 2023 WL 7292164, at *6 (citation and quotation marks omitted).  Likewise, the in camera documents “reflect[ed] discussions of defensive litigation strategies and responses to anticipated arguments from the plaintiffs’ experts” that “qualif[ied] as attorney work product.”  Id. at *7.

Given the nature of both the contacts and the information that was shared, Hawkins decided it was “fair” to preclude the turncoat Dr. Li from testifying.  “[G]iven numerous other courts [that] have disqualified Dr. Li on the same grounds,” “Plaintiffs should have known about Dr. Li’s long-standing relationship with [the defendant], including his consultation . . . about [this] litigation.”  Id.  With this history, plaintiffs took a calculated risk in designating Dr. Li.  Id.  When that risk crapped out , it was hardly unfair to require them to designate another expert.

What about those “other courts”?  Here they are in chronological order.  In King, the court also fond that “it was objectively reasonable for Defendants to believe that a confidential relationship existed” with Dr. Li, given the same history detailed in Hawkins.  2023 WL 5624710, at *7-8.  Dr. Li’s claim that he only “met casually” with defense counsel “seem[ed] ludicrous given he billed for his time and was paid.”  Id. at *8.

The [same in camera] documents show that Dr. Li met with attorneys for Defendants for more than dinner and drinks.  The documents [show] that Dr. Li was given access to Defendants’ litigation strategies, Dr. Li discussed opposing experts and how to cross-examine them, Dr. Li and Defendants identified potential problems Defendants might face and strategies to address them, and that Dr. Li and Defendants periodically reviewed new scientific articles that might affect the litigation strategies.

Id.  “[T]he integrity of the judicial process” required Dr. Li’s exclusion because “[a]llowing an expert to switch sides is fundamentally unfair.”  Id. at *9.

In Cannon, the test that “disqualification is warranted if the side-switching expert obtained privileged information from the first party” was satisfied.  2023 WL 7477903, at *2.  First, the defendants had “a reasonable basis − maybe even a compelling basis − for believing they were in a confidential relationship with Dr. Li.  Id. at *3 (emphasis original).

Defendants engaged Dr. Li to assist in the [current] litigation, had a number of meetings with him over several years, repeatedly shared work product with him, provided him with documents, paid him a substantial fee, asked him not to discuss the case with the opposing parties, and received assurances from him that he would protect Defendants’ information.  All these factors point towards a confidential relationship.

Cannon, 2023 WL 7477903, at *3 (citations and quotation marks omitted).  Given all this, the lack of “a written retention/confidentiality agreement” didn’t matter.  Id.  Cannon also rejected Dr. Li’s “dinner and drinks” excuse.  His “memory [wa]s simply too unreliable to trust.”  Id. at 4.  There was “only one viable conclusion here: Defendants had a reasonable basis for concluding they were in a confidential relationship with Dr. Li before Plaintiff retained him as an expert in this case.”  Id. at *5

After an extensive discussion, Cannon also found that Dr. Li had received confidential information as part of his engagement with the defendants.  Id. at *5-6.  “[A]ll” of the information was, at minimum, work product, and “some” of it “also f[e]ll[] within the scope of the attorney-client privilege.”  Id. at *6 (citation and quotation marks omitted).  “[M]uch of the information is relevant to this case because it implicates many of the issues on which Dr. Li now opines in his expert report.”  Id.  On these facts, “any outcome other than disqualification [of Dr. Li] would have a deleterious impact on judicial integrity.”  Id. at *6 n.7 (citation and quotation marks omitted).

Finally, McCoy, 2023 WL 5624710, reached the same conclusions.  First, it was “objectively reasonable” for the defendants to believe they had a confidential relationship with Dr. Li.  Id. at *6-7.  Dr. Li’s claims of “no recollection” were rejected in light of contemporaneous documentation, which demonstrated “consult[ations] with counsel for [defendant] multiple times over a period of years.”  Id. at *7.  Second, like the other cases, McCoy concluded that Dr. Li had received “confidential information relevant to the litigation.”  Id. at *8.  Again, the “contemporaneous documents” the defendants submitted were “inherently more reliable than Dr. Li’s recollections.”  Id. at *9.  Given the glacial pace of the MDL where these motions were originally filed, there was no waiver.  Id. at *9-10.  Plaintiff’s you-didn’t-catch-me-fast-enough argument thus failed.  What really carried the day in McCoy, however were “considerations of judicial integrity.”  Id. at *10.

[T]he Court has serious concerns that any outcome other than disqualification would have a deleterious impact on judicial integrity . . . [i]n light of the Court’s findings that a confidential relationship existed between [defendant] and Dr. Li, and that confidential information relevant to this litigation was almost certainly exchanged with him[.  T]he Court must endeavor to prevent any appearance of an expert “switching sides” in the same litigation and, advertently or not, potentially disclosing information that could provide the other side with a litigation advantage.  Accordingly, the Court finds, on balance, that disqualification [of Dr. Li] is the appropriate course of action.

McCoy, 2023 WL 4551081, at *10.  Accord McCoy v. DePuy Orthopaedics, Inc., 2023 WL 3829692, at *3 (S.D. Cal. June 5, 2023) (“the importance of protecting the integrity of the judicial process and preventing conflicts of interest” supports disqualification).

As we’ve already discussed at length, the MDL that preceded these decisions was itself characterized by questionable p-side conduct.  See In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753, 784-92 (5th Cir. 2018).  Unfortunately, the four decisions we’ve just detailed here demonstrate that their litigation tactics inimical to “judicial integrity” did not end with the MDL.  But fortunately – unlike the MDL itself – the district courts on remand have largely responded in an effective fashion to such shenanigans, and have disqualified the turncoat expert Dr. Li.