Interviewing Treating Physicians

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.


Continue Reading News Flash: Mass Tort Defendants in New Jersey Entitled to Level Playing Field

Thanks to FDA guru, regular reader, and occasional correspondent, Arnie Friede, we’re aware of an interesting ethical development in the District of Columbia.  It has to do with one of our recurrent topics – the ability of defense counsel to investigate their cases through informal contacts with probably the most relevant witnesses in the

We’ve always been interested in being allowed to have informal (sometimes called “ex parte”) interviews with treating physicians of the plaintiffs.  We think they’re fact witnesses (the most important ones in many, if not most, cases) and that by filing a personal injury lawsuit a plaintiff waives any expectation of physician/patient confidentiality as to the injuries being claimed and their treatment.

Good treating physician testimony can also win a case in and of itself – on the basis of no causation of any purported warning defect under the learned intermediary rule.

We’ve been sufficiently interested in the informal interview question that in late 2008, we even prepared our own 50-state survey of what we understood the states’ law to be on the subject.

Little did we know.

Well, it pays to keep our eyes open.  Just the other day the court in the Aredia/Zometa MDL released a valedictory of sorts – an order summarizing that MDL’s activity for the benefit of judges in remand cases.  In re Aredia & Zometa Products Liability Litigation, 2011 WL 2182824 (M.D. Tenn. June 3, 2011). We got word of this because the court mentioned its Buckman decisions on fraud on the FDA claims.  Buckman citations tend to be interesting, so we have a search that looks for them.


Continue Reading An Oldie But Goodie

A couple of readers dropped us notes after reading yesterday’s post about the situation with informal treating physician interviews in New Jersey.

Brad Wolff at Swift Currie kindly updated us on Georgia, which isn’t as much of a lost cause as we thought.  While the recent Georgia Supreme Court opinion in Baker v. Wellstar Health

About 18 months ago we posted a 50-state survey on state law regarding informal defense interviews with treating physicians of plaintiffs in personal injury cases. Under “New Jersey,” we noted that the state’s supreme court had specifically approved the practice in Stempler v. Speidell, 495 A.2d 857, 864-65 (1985). However, we went on to note:

However, parts of New Jersey have become “judicial hellholes,” and in some mass torts, New Jersey trial courts have systematically ignored Stempler, and refused to allow informal interviews at all.  E.g., Smith v. American Home Products Corp., 855 A.2d 608, 625 (N.J. Super. 2003).

Well, if anything that was an understatement – and it’s only gotten worse.

To put things in context, first let’s review Stempler.  It was a medmal, wrongful death case.  A dispute arose over the language of some authorizations for release of information by the plaintiff’s (technically, the plaintiff’s decedent, since it was a death case) treating doctors.  The defendant doctor’s counsel wanted informal interviews, but the plaintiff’s counsel crossed out that language and inserted other language that prohibited such interviews.  The trial court granted the defendant’s motion to compel the interviews.  After that, the New Jersey intermediate appellate court didn’t accept the interlocutory (for you non-lawyers, that means a request to appeal a non-final order that’s not otherwise appealable), but the New Jersey Supreme Court did. See generally Stempler, 495 A.2d at 858.

Despite being in a pro-plaintiff phase in any number of other ways (medical monitoring, expert witnesses, consumer fraud, DTC exception, you name it) the New Jersey Supreme Court unanimously affirmed the right of defendants in personal injury cases to seek informal interviews with doctors who had treated the plaintiff, if such treaters were willing, and as long as notification was provided to opposing counsel.  See 495 A.2d at 864-65.


Continue Reading Stempler And The Ongoing Usurpation Of The New Jersey Supreme Court

If you’re involved in drug and device (or any) product liability litigation, you’re dealing with expert witnesses.  And if you’re dealing with experts, you’ll want to think about the proposed amendments to Fed. R. Civ. P. 26 that (if all goes smoothly) could go into effect on December 1, 2010.

They deal essentially with two things:  (1) what expert witness productions and privileges, and (2) what to do about independent witnesses qualified to offer expert opinions.

Both are very interesting.

As to expert witnesses, we’ve blogged before (all right, not us, but a guest post) about some of the gamesmanship that goes on with respect to the production of material that an expert “considered” – including drafts of expert opinions – under the current draft of Fed. R. Civ. P. 26(a)(2)(B), which mandates broad disclosure and contains a comment that most courts have interpreted as overriding work-product and even attorney-client privileges with respect to anything that’s shown to an expert, even if the expert does not rely.

That language, and how courts interpreted it, led to a lot of unintended consequences.  There’s the litany of questions at expert depositions about every meeting the expert has had with counsel, what notes were taken, and what drafts exist.  There’s the engagement of two parallel sets of experts, with one set designated as “consulting” (that is, non-discoverable), so that attorneys can interact with at least one set of experts in peace – and then, when everything’s done, the “testifying” expert adopts the product of all that as his/her pristine report.  There’s so much gamesmanship that, in a lot of cases, the parties agree to stipulate out of this language.  Why is all this done?  Because every now and then, some lawyer screws up and the other side gets really valuable.  See, e.g., Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005), for a cautionary tale.


Continue Reading New Amendment To Rule 26 Concerning Expert Disclosures

Have you ever noticed how you notice the same thing everywhere when you’re thinking about it? If you’re contemplating purchase of a station wagon, you see station wagons all over the place (sort of like the parking lot of a 1970’s Bobby Sherman concert).

We’ve been thinking about ex parte interviews with treating doctors. We’re

Arthur Parker ingested Upsher-Smith Laboratories’ drug amiodarone, developed pulmonary difficulties, and died. His widow brought a product liability action against Upsher Smith.

Lawyers for Upsher-Smith wanted to interview some of Parker’s treating physicians. Plaintiff opposed those ex parte interviews, saying that Nevada law prohibits the interviews and that waivers granted under HIPAA do not preempt

We’ve blogged before about the importance of both sides in personal injury litigation – and especially drug/medical device product liability litigation involving the learned intermediary rule – having equal rights to talk to treating/prescribing physicians. We’ve praised courts that have gotten this issue right – most significantly the New York Court of Appeals in the