In one respect, Chaiken v. Bristol-Myers Squibb, 2017 U.S. Dist. 177588 (D.N.J. 2017), is just another example of a court granting a defendant drug manufacturer summary judgment on a failure to warn claim because the prescriber testified at her deposition that a different warning would not have changed her prescribing decision. On closer inspection, the decision also reveals a district judge unwilling to credit a prescriber declaration that was produced after a summary judgment motion was filed and, more important, obtained through ex parte discussions with the plaintiff’s attorney.

As background, this is a Plavix case. The plaintiff was admitted to the hospital in September 2011 with a TIA and prescribed Plavix. The prescriber in the hospital was a Dr. Bahreman. After her discharge, another doctor, a Dr. Leonard, prescribed plaintiff Plavix on an ongoing basis. In November 2011, while using Plavix prescribed by Dr. Leonard, plaintiff suffered a GI bleed, the basis of her lawsuit. Id. at *6-7.

During discovery, the deposition testimony of both prescribing doctors seemed to doom plaintiff’s failure to warn claim. The doctors testified to understanding the risk of bleeding associated with Plavix, and yet they still stood by their prescribing decisions:

Here, there is no dispute that both Drs. Bahreman and Leonard testified—at their deposition—that even considering the bleeding risks and the additional warnings, they would have prescribed Plavix to Plaintiff in light of various medical factors in connection with Plaintiff’s condition, particularly the fact that Plaintiff might have been intolerant of aspirin.

Id. at *19. That reads very much like “Miller time.”

But that’s when the ex parte declaration shows up. After the depositions, and indeed after defendants filed their summary judgment motion, plaintiff’s attorneys made a trip back to see the prescribing doctor in the hospital, Dr. Bahreman, held ex parte discussions during which they showed him a clinical study, and walked away with a declaration in which the doctor said that he would have shared the additional clinical information and plaintiff would not have been prescribed Plavix. Id. at *25.

While the content of this declaration appears, at first blush, to present problems, the procedure under which it was obtained had more problems. The court was uncomfortable with it. In a lengthy footnote, the court examined the history of the Plavix MDL’s restrictions on ex parte communications with doctors, including the court’s ultimate prohibition of such contact during discovery:

. . . After the deposition of Dr. Bahreman, Plaintiff’s counsel engaged in ex parte conversations with the doctor for the purposes of opposing Defendants’ summary judgment motion. . . . As Defendants pointed out, a previous Order, entered by the Magistrate Judge early in this litigation, disallowed counsel to have any ex parte communications regarding liability issues with the treating physicians of any of the plaintiffs in the MDL, with no exception for post-deposition communications. . . . I held that counsel may not have ex parte communications with plaintiffs’ treating physicians, including post deposition, except that counsel may contact a treating physician at the close of discovery and after the resolution of a summary judgment motion. . . .

Id. at *11, n. 2.

While clearly uncomfortable with the declaration, and faced with a request by defendants to apply the sham affidavit doctrine, the court was able to sidestep these issues by finding the declaration lacking in the necessary substance: “Because I find that even considering Dr. Bahreman’s declaration, summary judgment is appropriate, I need not address those arguments.” Id.

In particular, the court noted that Dr. Bahreman was not the prescribing physician at the time that the GI bleeding occurred. It was Dr. Leonard. Dr. Bahreman’s declaration did not matter. Separately, the court interpreted language in the declaration—that Dr. Bahreman would have “shared” information from the clinical study he’d reviewed with the plaintiff’s lawyers and Plaintiff “would not have been prescribed Plavix”—to mean that Dr. Bahreman would have shared the information with Dr. Leonard, the subsequent prescriber who treated plaintiff at the time of the GI bleed. But Dr. Leonard quite clearly testified that she would nonetheless have prescribed Plavix to plaintiff. As such, the court disposed of the failure to warn claim without addressing the potential impropriety of the ex parte declaration:

Dr. Leonard was the final decision-maker, or the prescribing physician, who ultimately determined that the benefits of placing Plaintiff on Plavix far out-weighed the bleeding risks that she posed. Thus, for the purposes of applying the learned intermediary doctrine, the relevant inquiry should be focused on whether Dr. Leonard was sufficiently warned by Defendants regarding the risks of Plavix, and whether Dr. Leonard would, in any event, have prescribed Plavix to Plaintiff in light of additional warnings proposed by Plaintiff. Indeed, as to both of these questions, Dr. Leonard testified in the affirmative.

Id. at *22.

We suspect that any future ex parte communications in the Plavix MDL with prescribers during discovery, and particularly after the filing of a motion for summary judgment, will be treated more directly and harshly by the court. This decision sends that signal. Justice is simply not served by presenting a “clarified” ex parte declaration after a deposition already resulted in testimony that had been vetted under adversarial questioning.