Defense Equal Access to Potential Experts Upheld in Device Case

A Joe Friday post today- just the facts with no commentary.  A state appellate court earlier this month overturned a trial court order that had limited one side's ability to consult with or retain knowledgeable physicians as witnesses. See In re Pelvic Mesh Gynecare Litigation, No. A-5685-10T4 (N.J. Super. Ct. App. Div., 6/1/12).

The issue arose in the mass tort involving medical devices used primarily to treat pelvic organ prolapse and stress urinary incontinence. Plaintiffs in the New Jersey cases had filed suit against
defendants alleging injuries sustained as a result of the surgical implantation of the pelvic mesh product. As is not atypical, some of the most qualified experts had previously prescribed or implanted the device at issue. And it was possible that some former patients would or had become plaintiffs. In January 2011, defendants moved to establish a protocol similar to ones used in some federal litigation for consulting with and possibly retaining as defense experts physicians who had treated a different plaintiff in the pelvic mesh litigation.  Defendants proposed that a treating physician would have no communication with the defense about his or her own patient-plaintiff an would not be used as an expert witness in the patient-plaintiff's own case. Plaintiffs' counsel opposed the motion and cross-moved for a protective order barring defendants from retaining or consulting with any physician who at any time had treated any of the plaintiffs in the pelvic mesh litigation.

The lower court issued an order in May, 2011, barring defendants from consulting with or retaining any physician who had at any time treated any plaintiff in the pelvic mesh litigation. Defendants estimated that more than 1,000 physicians were disqualified as potential defense experts.

The appellate court granted defendants' motion for leave to appeal, and subsequently stayed discovery to the extent it applies to defense experts.

The appellate division vacated the protective order because, it concluded, the order profoundly
impaired defendants' ability to defend the lawsuits because it prevented them from employing qualified experts in cases against plaintiffs other than their own current or past patients; not only did the order severely limit the pool of qualified and willing physicians that defendants could consult and engage as expert witnesses but it placed defendants in the precarious position of consulting and preparing experts only to have them later disqualified if new plaintiffs were added to the litigation.

On the issue of doctor-patient privilege, the court concluded that a plaintiff in these cases cannot claim the privilege as to the diagnosis and treatment of her medical condition that is the
subject of the lawsuit, and a treating physician can be compelled to testify as a fact witness regarding those subjects, including the doctor's determination of the cause of the plaintiff's disorder. Doctors can be expected to understand they are subject to ethical constraints against disclosure of confidential patient information. The court said that the key issue in this appeal was not whether the physician-patient privilege prevented engagement of a treating physician as an expert for the defense. The issue is whether some other rule or judicial or public policy categorically bars a treating physician from serving as an expert witness against the "litigation interests" of his or her patient, although in a different plaintiff's case.The court concluded that the trial court's ruling was a mistaken exercise of authority to manage this litigation. It inappropriately equated a plaintiff's "litigation interests" with a patient's "medical interests," and it elevated those "litigation interests" to a preemptive level not previously recognized by binding authority.

In many types of personal injury cases, said the court, physicians who testify for the defense or consult with defense counsel provide those services contrary to the interests in litigation
of other patients they have treated or continue to treat. For example, radiologists, orthopedists, and neurologists who routinely testify as experts for the defense in numerous personal injury cases in state courts are likely to be treating or consulting physicians for other patients with similar injuries, and some of those patients may also have filed lawsuits or may do so in the future. "Our system of civil justice does not bar a physician from expressing a position in litigation of one plaintiff that is contrary to the litigation interests of a current or past patient in another case."

Here, said the appellate division, the physician's information that defendants seek to use is neither the particular diagnosis or condition of a patient that the physician treated nor the fruit of expert
consultation to assess or prepare plaintiffs' claims. Rather, it is the physician's overall knowledge regarding the nature, use, risks, and safety of defendants' pelvic mesh products and the conditions that patients may experience as a result of their use. The fact that plaintiffs filed suit in New Jersey and invoked the rules for joint case management should not affect the availability of relevant evidence to both sides.

Moreover, the "litigation interests" of one patient may or may not be consistent with or contrary to the "medical interests" of the physician's other patients. For instance, specialists in gynecology, urology, or urogynecology may disagree with the claims of plaintiffs in this litigation that  defendants' products are defective and caused their injuries. Those specialists may believe that defendants' pelvic mesh products are not only safe but necessary or the most beneficial treatment
for conditions suffered by their patients. They may believe that supporting the defense in this litigation will be beneficial to most of their patients. The trial court's order not only bars physicians from truthfully expressing opinions favorable to the defense but it may potentially harm the
"medical interests" of other patients and interfere with the ability of physicians to provide the best available care for all their patients.

Rather than disqualifying as a group all treating physicians who ever treated any plaintiff, said the appeals court, the trial court should address such concerns by allowing plaintiffs to demonstrate why a particular expert retained by defendants should not be permitted to testify or assist in the
case of a different plaintiff. The fact that this litigation involves coordinated case management did not justify a broad finding of presumed prejudice to plaintiffs and the blanket ban. If plaintiffs make such a particularized showing, the court was directed to consider appropriate protective measures, including disqualification where lesser measures are not sufficient or feasible.
 

In summary, said the appeals court, both sides in this litigation should have the opportunity to present evidence from the most qualified physicians who can serve as experts. The trial court's order unfairly impeded defendants' access to many of those physicians, and so, must be reversed. 

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