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 doctorswhether 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.)

That leads us to a California state court decision issued ten days ago in the Actos litigation.  See Yotam v. Takeda Pharmaceuticals North America, Inc., No. BC411687 (Cal.Sup. Ct. Mar. 20, 2015).  There, plaintiffs’ counsel had been conducting ex parte interviews with treating doctors in much the way that we have come to expect.  They were meeting with doctors alone and showing them internal company documents, no doubt those with the seemingly worst language they could find.  Then, no doubt, some doctors, armed with little to no context, foundation or understanding of how the company operates and makes decisions, express ill-conceived opinions about marketing and which snippets of internal information or isolated data should have been included in the warning. Doctors are often also given a handful of minutes to look at pre-highlighted clinical studies and, with no time to scientifically analyze them, asked to offer opinions.  Then, a few days later, plaintiffs’ counsel elicits those newly-minted opinions at a deposition.  Blindsided, defense counsel scrambles to either illustrate the doctor’s lack of foundation for the opinions in the hope of later excluding them or, in the alternative, place the documents in context so as to undermine or reverse the doctor’s opinions.  Through this process, plaintiffs’ counsel has conjured up a stealth, undisclosed expert witness, one with the added credibility of having treated the plaintiff.  Defense counsel is left to simply watch the end product unfold in front of her at a deposition.  

This is hardly a fair-handed way to conduct discovery.  

So, the defense counsel in Yotam asked the court to stop it.  They moved the court for one of two orders: either (1) limit plaintiffs’ counsel’sex parte interviews to a plaintiff’s treatment, diagnosis and prognosis or, instead, (2) allow defense counsel the opportunity to also interview treaters using the same type of documents that the doctors likely never saw before.  While neither of these solutions would grant the defense the same access as plaintiffs’ counsel – that is, the defense wouldn’t be allowed a straight-up interview on a plaintiff’s treatment, diagnosis and prognosis (which presumably was previously disallowed by the court) – it would make the process a bit fairer, allowing defense counsel, before the deposition, to undo or better inform certain of the doctor’s newly-minted opinions.  

The court agreed to option 1.  That’s the right decision.  As the court put it, treating doctors are “percipient” witnesses.  For those (like us) who need to look that word up, it means that they are real witnesses.  They are there to discuss what they perceived in treating the plaintiff, not opinions later concocted during litigation.  Sure, doctors are experts in their field.  But that doesn’t mean they can be willy nilly used as undisclosed experts in the litigation.  “While the treating physicians are percipient ‘experts’ (and may in fact provide fact and opinion testimony), they are not designatedexperts.”  Id. at 13.  They court laid out the new limitations on Plaintiffs’ counsel:

Plaintiffs' counsel may meet ex partewith treating physicians and ask them questions about the information obtained by an examination of their patients.  Plaintiffs' counsel may then use the information learned from the ex parte contacts to tailor deposition questioning.  As Defendants note, during deposition, Plaintiffs' counsel may show the treating physicians medical articles and documents [those which have been deemed confidential) and ask them whether they would have made prescribing decisions had they known certain facts at the relevant time.

Id.  That’s right.  These solo interviews, which defense counsel does not get to conduct, should not be used as a breeding ground for undisclosed, litigation-created opinions.  

Now, this is a good result, but only from the position from which the defense was forced to operate—having no ex parte access to doctors at all. To be completely fair, the defense should have the same access to doctors that the plaintiffs’ counsel has.  The defense should be allowed to meet with the treaters and discuss plaintiff’s treatment, diagnosis and prognosis. Doctor-patient confidentiality has been waived. Plaintiffs put their treatment at issue the moment that they filed suit, leaving no meaningful basis to limit doctor interviews to only plaintiff’s counsel.  That said, this was an impressive victory in which defense counsel limited the damage from an already uneven playing field.