A constant subject of motion practice in pharmaceutical and medical device multidistrict litigation (MDL) practice concerns ex parte contact with plaintiffs’ prescribing and treating physicians. Defendants consistently seek to limit the communication between plaintiffs’ counsel and plaintiffs’ physicians to a strict discussion of the physicians’ diagnosis and treatment and of the medical conditions of the plaintiffs, yet they request permission to engage in their own ex partecommunications with some of these very same doctors in the hope of retaining them as experts. In some cases, particularly with a limited expert pool, courts have granted defendants’ motions permitting them to retain a finite number of plaintiffs’ physicians as their own experts; however, defendants’ attempts to restrict communications between plaintiffs’ counsel and plaintiffs’ physicians remain unsuccessful.
Three recent decisions reinforce existing case law, which rejects the limitations defendants seek to impose on plaintiffs’ ex parte contacts with plaintiffs’ physicians and discredits defendants’ allegations that plaintiffs will use this as an opportunity to improperly influence physician testimony. In a recent one-month period, three different MDL courts addressed the issue of ex parte communications between plaintiffs’ counsel and plaintiffs’ prescribing and treating physicians. See generally In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2016 WL 915288 (E.D. La. Mar. 9, 2016); In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, 2016 WL 929343 (N.D. Ill. Mar. 7, 2016); In re Benicar (Olmesartan) Prods. Liab. Litig., MDL No. 2026, 2016 WL 1370998 (D.N.J. Apr. 6, 2016). In each litigation, defendants sought entry of a court order barring plaintiffs’ counsel from discussing liability issues or theories with plaintiffs’ physicians. In re Xarelto, 2016 WL 915288, at *2; In re Testosterone Replacement Therapy, 2016 WL 929343, at *2; In re Benicar, 2016 WL 1370998, at *1.
As discussed, this is not an issue of first impression for the courts. Defendants in three cases attempted to introduce new arguments; however, no court found good reason to depart substantially from the rationale of one of the earliest rulings on this issue. In re Xarelto, 2016 WL 915288, at *4 (discussing the Vioxx decision; see below); In re Benicar, 2016 WL 1370998, at *4 (same); In re Testosterone Replacement Therapy, 2016 WL 929343, at *3. In In re Vioxx Products Liability Litigation, 230 F.R.D. 473, 474 (E.D. La. July 22, 2005), Judge Eldon Fallon issued an order requiring plaintiffs’ counsel to provide notice to defense counsel five days in advance of an interview with the plaintiff’s prescribing physician, and opposing counsel would then be permitted to attend and participate in the interview. The plaintiffs sought modification of this order, arguing its effect resulted in several unintended consequences, including plaintiffs’ counsel’s inability to conduct proper pre-filing case evaluations. Id. at 475. In granting the plaintiffs’ motion, Judge Fallon determined the presence of defense counsel during these interviews, without the permission of the patient, would impair the sanctity of the confidential patient-physician relationship and potentially reduce the quality of medical care received by the plaintiffs. Id. at 477. Furthermore, because the defendants will receive each plaintiff’s medical records as well as a profile form detailing the plaintiff’s relevant medical history, and because they already have documentation of the information the company relayed to the treating physicians about Vioxx, Judge Fallon ruled that the defendants “do not need the doctors to tell them in ex parte conferences what they already know.” Id.
The defendants acknowledge a need to preserve the patient-physician relationship but contend that giving plaintiffs’ counsel unfettered access to the plaintiffs’ treating and prescribing physicians will result in “woodshedding.” In these so-called “woodshedding” motions, defendants use this term to describe a process by which plaintiff’s attorneys’ meetings with treating physicians result in impermissible coaching. In re Xarelto, 2016 WL 915288, at *1 n.1; In re Testosterone Replacement Therapy, 2016 WL 929343, at *2; In re Benicar, 2016 WL 1370998, at *1 n.2.
The defendants argued in these MDLs that if plaintiffs’ counsel are entitled to review internal documents and discuss theories of liability with plaintiffs’ physicians, this will undoubtedly have an improper influence on the physicians and could even deter physicians from prescribing the medication that is still on the market and known to have proven health benefits. In re Xarelto, 2016 WL 915288, at *3; In re Testosterone Replacement Therapy, 2016 WL 929343, at *2; In re Benicar, 2016 WL 1370998, at *3. In support of this notion, the defendants cited one purported example of “woodshedding” in the California ASR hip implant litigation. In re Xarelto, 2016 WL 915288, at *2, *6; In re Benicar, 2016 WL 1370998, at *3. In this anomalous situation, the plaintiff’s physician was a personal friend of the attorney for over 20 years. The physician admitted to incorporating specific language in the record (“reasonable degree of medical certainty,” etc.) at the request of plaintiff’s counsel, but did so to “support … eventually getting his total hip paid for, at least help in paying for it for him if he didn’t have other coverage.” Transcript of Hanson Deposition at 173 (lines 3–5), Kransky v. DePuy Inc., No. BC456086 (Cal. Super. Ct. Nov. 30, 2012) (transcript on file). When viewed in context, this instance involved a distinct set of facts and is in no way representative of plaintiffs’ counsel’s conduct in mass tort litigation generally.
Aside from this example, the courts found little authority in support of the defendants’ contentions. “The problem with defendant’s argument is that there is no credible evidence to support it.” In re Benicar,2016 WL 1370998, at *3. For instance, after four years of unregulated ex partecontacts between plaintiffs’ counsel and treating physicians in the Kugel Mesh litigation, the defendants in that litigation could not provide any substantial evidence of woodshedding to warrant imposition of additional restrictions. In re Xarelto, 2016 WL 915288, at *4, *6 (citing In re Kugel Mesh Hernia Repair, No. 07-184ML, slip. op. at 3 (D.R.I. Jan. 12, 2012). As the courts came to agree, not only was there insufficient proof of routine abuses, but this is a problem that cannot be easily patrolled:
The Court lacks the ability to surgically remove delicate insinuations from the individual sentences of Plaintiff’s counsel. . . . Simply put, the Defendants’ request to cleanse advocacy from Plaintiffs’ ex parte physician contacts may not be easily detectable and is not enforceable, and this Court will not issue a pretrial order which is impossible to police.
Id. at 5.
Moreover, the courts rejected the defendants’ implication that plaintiffs’ physicians, highly trained professionals, would be so easily influenced by plaintiffs’ counsel. “The Court is doubtful that plaintiff’s physicians can and will be duped, and they will defer to plaintiffs’ lawyers about what drugs to prescribe.” In re Benicar,2016 WL 1370998, at *4. The plaintiffs thus believe that the term “woodshedding” should be removed from the legal lexicon because it demeans the integrity of both attorneys and physicians by suggesting that improper conduct by counsel representing their clients will overcome the independent medical judgment of physicians. Indeed, if we continue to use this term in our everyday practice, it should then also be referenced every time sales representatives or corporate witnesses are prepped by defense counsel.
While defendants may interpret these rulings as giving plaintiffs free rein to pit physicians against the pharmaceutical companies, the courts did not leave the defendants without meaningful recourse. “The opposing party may question the witness about his contacts with the other side to shed light on improper attempts to influence or mislead; may, with some limitations, obtain discovery regarding those contacts; and may, if the circumstances warrant, seek sanctions.” In re Testosterone Replacement Therapy, 2016 WL 929343, at *1. Furthermore, each court implemented a strict deposition protocol that guarantees that the defendants receive adequate protections from the perceived ills of allowing plaintiffs’ counsel to discuss topics outside plaintiff-specific treatment with the physician. Accordingly, prior to each physician’s deposition, plaintiff’s counsel must produce the following information concerning pre-deposition contacts: the date, approximate duration, the means (e.g., in person, by telephone), the participants, and the identity of the documents or any electronically stored information provided or described to the physician in connection with the communication. In re Xarelto, 2016 WL 915288, at *6; In re Testosterone Replacement Therapy, 2016 WL 929343, at *3; In re Benicar,2016 WL 1370998, at *6. The remedy of disclosure of this information and the opportunity for cross-examination ameliorates the expressed concern for so-called woodshedding. The courts have achieved a proper balance by permitting plaintiffs’ counsel to properly represent their clients in ex parte communications with physicians, while granting the defendants access to information about ex parte contacts.
These three decisions also touch on defendants’ ability to engage in ex parte communications with plaintiffs’ treating and prescribing physicians for the purpose of retaining their own experts. This practice began following the New Jersey Appellate Division’s ruling in the New Jersey Pelvic Mesh litigation. In In re Pelvic Mesh/Gynecare, 426 N.J. Super. 167, 174 (App. Div. 2012), the trial court prohibited the plaintiffs from consulting with or retaining any physician who had at any time treated any plaintiff in the litigation. The defendants argued that with the number of plaintiffs continuing to increase and the limited number of urogynecologists with experience in the use of pelvic mesh, the trial court’s ruling would prevent the defendants from retaining physician experts with the most specialized knowledge and expertise in the field. Id. at 175. The appellate court agreed, and we now see similar rulings in other MDL courts, each presiding over more than a thousand cases—Xarelto, Testosterone, and Benicar. In this regard, the number of cases in suit is quite significant. Courts should not readily grant similar motions in litigations involving fewer plaintiffs because defendants are more likely to find a qualified expert who has not treated a plaintiff.
As the court outlined in In re Pelvic Mesh/Gynecare, the three MDL courts agreed the defendants are permitted to retain a plaintiff’s physician as an expert so long as the defendants do not discuss any matters related to any of the physician’s current or former patients and the physician does not serve as an expert in a trial involving his or her patient. In re Xarelto, 2016 WL 915288, at *8; In re Testosterone Replacement Therapy, 2016 WL 929343, at *4; In re Benicar,2016 WL 1370998, at *7. The Xarelto court added an interesting caveat to the established prerequisites of retaining plaintiffs’ physicians as defense experts. The court required the physician expert to disclose the proposed arrangement with the defendants to all current patients who have taken or are presently taking Xarelto. In re Xarelto, 2016 WL 915288, at *8. The defendants filed a motion for reconsideration, arguing that this type of disclosure is unprecedented and that disclosure should be limited to patients of testifying experts with lawsuits pending. Brief for Defendants et al. at 1–2, In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592 (E.D. La. 2016), ECF No. 2991-1. In support of their motion, the defendants attached a declaration from Dr. Arthur Z. Schwartzbard, M.D., affirming that this requirement would not only deter physicians from serving as defense experts but could also damage the physician-patient bond. Id. at 2, 6. Furthermore, the defendants urged that notice should only be given by defense counsel to plaintiffs’ counsel on the previously agreed-upon deadline for disclosure of designated defendants’ testifying experts. Id. at 10. The defendants sought to distinguish “testifying” experts from “non-testifying” experts or consulting experts. Id. at 10–11. As the existing order could be interpreted, the defendants argued that if any prospective expert were required to provide notice to his or her patients, the plaintiffs would unfairly learn the identities of the defendants’ consulting experts, and this would run afoul of Rule 26(b)(4), which only requires disclosure of experts expected to testify at trial. Id.
The Xarelto parties subsequently proposed a joint pretrial order that was entered by the court. Pretrial Order No. 28, In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592 (E.D. La. Apr. 28, 2016), ECF No. 3156. The order establishes that defendants’ counsel will disclose to plaintiffs’ counsel the name of any testifying expert who has patients who are plaintiffs in the MDL on the previously agreed-upon date outlined in the bellwether scheduling order. Effectively, the physician is rid of any obligation to personally notify his or her patients of any potential involvement in the litigation. However, in an effort to balance the interests of the parties, the order further stipulates that the defendants are limited to engage in ex parte communications with up to 30 MDL plaintiffs’ prescribing or treating physicians and may only retain up to 15 of these physicians. Importantly for the plaintiffs and the efficacy of the bellwether process, the order prohibits the defendants from retaining any physician expert who served as a prescribing or treating physician of any current discovery pool plaintiff until after the trial or disposition of the first four bellwether trials. Plaintiffs will and should continue to oppose defendants’ request to retain plaintiffs’ physicians as their own experts, but they can have some solace if the courts continue to impose similar restrictions on defendants.
In sum, these recent decisions should put to rest defendants’ motions seeking to limit ex parte communications between plaintiffs’ counsel and plaintiffs’ physicians to case-specific medical treatment. No court was persuaded by defense allegations that plaintiffs’ counsel will abuse this ability. While the courts had been primarily concerned with implementing measures to preserve the patient-physician relationship, this new wave of analysis in which the courts appreciate the integral role that prescribing and treating physicians will play in the plaintiff’s case should, it is hoped, restore the long-standing legal principles of witness preparation and client advocacy.
Keywords: litigation, mass torts, woodshedding, ex parte communication, treating physician
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