Bexis recently attended the “Emerging Issues in Mass-Tort MDLs Conference” sponsored by Duke Law School (those of us from Philly remember Duke as part of “Black Saturday” back in 1979). Several panels discussed various issues relating to MDLs including using early, issue-specific fact sheets, which Bexis advocated be considered amended pleadings subject to Rule 8
It’s only been one month since we posted about the disappointing decision in the Xarelto MDL regarding plaintiffs’ ability to have unfettered ex parte conversations with treating and prescribing doctors before those doctors are deposed as critical fact witnesses. We noted then that it is a hotly contested issue in almost every mass tort. A fact acknowledged by the latest court to consider the issue in an MDL – In re: Benicar (Olmesartan) Products Liability Litigation, 2016 U.S. Dist. LEXIS 47067, *215 (D.N.J. Apr. 6, 2016) (don’t be daunted by the page number, that’s where the substance of the decision begins – after 214 Lexis pages of counsel appearances). Unfortunately, the trend seems to be to allow plaintiffs unequal and unregulated access to these key witnesses – to potentially “woodshed” the doctors – and hope that disclosure requirements even the playing field.
The Benicar decision relies heavily on the recent Xarelto decision, so it doesn’t offer a lot of new ground. As in Xarelto, the Benicar court found no evidence of improper communications to justify defendants’ request for limitations on ex parte communications. Id. at *220-21. Like we said last month, this is like saying we won’t close the barn door until after we see if the horses escape. Closing it after the fact doesn’t really help – the damage is done. The Benicar decision goes on to talk about its faith in doctors. That they will act professionally, won’t be duped by plaintiffs’ counsel, or defer to plaintiffs’ counsel on what medications to prescribe. Id. at *223. We hope this is all true, especially that last point. But there is more to “poisoning the well” than just trying to convince doctors the drug isn’t safe or effective. Plaintiffs like to show doctors internal company documents that no doctor would ever see in the normal course. And plaintiffs’ counsel love to ask: wouldn’t you have liked to see this? Knowing full well that defendants are highly regulated in what they can and cannot show or share with doctors. Which brings up another point that the courts seem to gloss over. They seem to buy into plaintiffs’ argument that defendants have had access to the doctors for years in marketing their drugs. Id. at *225. Unfettered, unfiltered, say anything communication? No way. Regulated, controlled, fairly-balanced communications? Yes, those we’ve had. So, if the courts seem to think that pharmaceutical representatives’ interactions with doctors are on the same footing as plaintiffs’ counsel’s, let’s make them the same and put some parameters in place. Isn’t that really what defendants are asking for?
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.
We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background. Onscreen was a popular cable reality franchise involving wealthy denizens of a gated community in Southern California. The heated argument du jour involved one resident’s decision to speak privately to another about a third, during which exchange B-to-C confidences may or may not have been disclosed to A. The original confider was adamant that the information was hers alone to control, insisting that the private conversation should not have occurred. Much perfectly-coiffed shrieking ensued.
We were reminded of this spectacle as we read the decision of the Kentucky Supreme Court in Caldwell v. Chauvin, — S.W. 3d. –, 2015 WL 3653447 (Ky. June 11, 2015). In Caldwell, the underlying medical malpractice action involved plaintiff’s claim that her spinal surgery was unnecessary and negligently performed and caused her permanent injuries. In the course of discovery, defendant moved for a qualified protective order permitting him to make ex parte contacts with plaintiff’s healthcare providers. The court entered an order permitting such contacts but expressly declining to authorize disclosure of plaintiff’s health information. The order “also explicitly stated it was [not] requiring any physician to speak with [defendant] . . . , noting [that] the treating physicians [were] free to accept of decline counsel’s request as they [saw] fit.” Id. at *2 (internal punctuation omitted). Plaintiff sought a writ of prohibition from the Court of Appeals. The Court of Appeals declined to issue the writ, holding: 1) no Kentucky law prohibits the trial court from authorizing ex parte communications with non-expert treating physicians; and 2) the order did not violate any privacy right plaintiff might have because it did not compel the disclosure of any information. Id.
This post originates from the non-Reed Smith side of the blog, only.
We’re going to take a walk once again onto the uneven ground of ex parte interviews of treating doctors, an area in which Plaintiffs’ counsel too often seem to be handed the higher ground. Plaintiffs’ counsel always seems to get the opportunity to conduct doctor interviews. They then talk to the doctors about the plaintiff’s medical records, course of treatment, diagnosis and prognosis, but those are only the preliminaries. That’s not what they’re there for. They’re lawyers. They’re there to litigate. They want opinions on key litigation issues like causation, warnings and marketing. So plaintiffs’ counsel shows the doctors documents that they never saw before or ever had any reason to see and uses them to try to generate plaintiff-friendly opinions.
Defense lawyers, on the other hand, often don’t have the same opportunity. In New Jersey, for instance, judges rarely allow ex parte interviews by defense counsel in mass tort litigation, even though the New Jersey Supreme Court has authorized such interviews, as a general matter, in tort litigation. On the other end of the spectrum, New York allows defense counsel to conduct ex parte interviews of treating doctors whether it be in an individual tort action or as part of a mass tort litigation—though our experience with such interviews (known as Arons interviews) is that courts sometimes place authorization and notification requirements on defense counsel that allow plaintiffs’ counsel the opportunity to speak to the doctor first and learn which documents defense counsel may show the doctor. It’s still much better than no interview at all. (We blogged about the varying approaches of different states here.)
For over seven years, we’ve been following the odd little romance that the other side of the “v.” has been having with purported federal preemption of state litigation practices that allow our side to conduct voluntary, informal interviews with treating physicians – since our “HIPAA Does Not Preempt State Litigation Practice” post back in DDLaw’s formative Beck/Herrmann days. To put our position in one sentence, since HIPAA has an explicit exception for litigation (45 C.F.R. §164.512(e)), HIPAA has no preemptive effect on state law that accords both sides the same right to talk to treating physicians informally.
Last Friday the Eleventh Circuit decided Murphy v. Dulay, ___ F.3d ___, 2014 WL 5072710 (11th Cir. Oct 10, 2014), and rejected a HIPAA challenge to a Florida statute allowing – indeed effectively routinizing (if the doctor is willing) – informal treater interviews. Murphy isn’t going to help our clients directly, since the statute in question applies only to medical malpractice cases, and general Florida law, according to our 50-state survey of informal interview law is adverse. Still, precedent is precedent, and a federal appellate court rejecting bogus HIPAA preemption arguments should be rather persuasive, as well as fun to blog about.
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…
Due to Reed Smith’s involvement in the pelvic mesh litigation, this post is from the Dechert side of the blog only.
Ex parte interviews of treating physicians – a subject near and dear to our hearts. Specifically, we rail against those jurisdictions that deny defense counsel the ability to investigate their cases through informal contacts…
Today’s case has a lot of little gems. But, it is a short work week, so we’ll try to keep our post short as well. After all, we have pies to bake, turkeys to stuff and miles to travel. Just thinking about it (well, not the traveling part) makes our mouths water and has us…
Because Bexis’s firm is involved in the Pelvic Mesh litigation, he is not involved in this post about yesterday’s opinion of the New Jersey Appellate Division in In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4, slip op. (N.J. Super. App. Div. June 1, 2012).
We wish it wasn’t so newsworthy, but defendants in New Jersey have had a devil of a time getting the same opportunity as plaintiffs in mass torts to obtain certain important evidence. And now, so sayeth the Appellate Division.
Here’s what happened. The Pelvic Mesh mass tort involves several hundred plaintiffs. After first precluding defendants from informally contacting plaintiffs’ treating physicians – ordinarily allowed under Stempler v. Speidell, 495 A.2d 857 (N.J. 1985) – the court entered an order precluding any defendant from using as an expert witness any physician who had ever treated or consulted with any plaintiff, even though that plaintiff was not the subject of the expert testimony. As described by the Appellate Division:
[T]he [trial] court issued an order and written decision dated May 26, 2011, barring defendants from consulting with or retaining any physician who had at any time treated any plaintiff in the pelvic mesh litigation. . . . At the time of the court’s order, the number of plaintiffs had risen to more than 220. Defendants estimated that more than 1,000 physicians were thus disqualified as potential defense experts.
Pelvic Mesh, slip op. at 8-9.
The result was predictable. The plaintiffs in that litigation had the opportunity to try to retain as an expert any physician in the relevant specialties. The defense, on the other hand, was prevented from retaining a significant number of the available experts, disproportionately including the most active specialists with the largest practices.