September 21, 2016 Articles

The Plaintiffs' Perspective: Putting the Notion of "Woodshedding" to Rest

By Danielle Gold

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.

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