Treating Physicians Can Serve as Defense Experts
By Oran F. Whiting, Litigation News Contributing Editor – August 29, 2012

n a recent mass tort decision, the Appellate Division of the New Jersey Superior Court ruled that defendants may retain physicians who previously treated certain plaintiffs as experts against related or similar plaintiffs. In re Pelvic Mesh/Gynecare Litigation. Consequently, defendants are no longer restricted to a limited pool of qualified experts.

The Pelvic Mesh Trial Court Limits the Expert Pool
In Pelvic Mesh, several hundred plaintiffs from multiple states individually filed suit in New Jersey against defendants Johnson & Johnson and Ethicon, Inc. The plaintiffs alleged they suffered injuries caused by a line of pelvic mesh medical devices designed, manufactured, marketed, and sold by the defendants.

Defense counsel moved the trial court to establish a protocol for consultation with and possible retention of patients’/plaintiffs’ treating physicians as defense experts. Counsel proposed that a treating physician would have no communication with the defense about his or her own patient/plaintiff, and would not be used as an expert witness in that patient’s/plaintiff’s own case. In fact, many plaintiffs had terminated their physician/patient relationships with their implant surgeons.

Plaintiffs’ counsel opposed the motion and cross-moved for a protective order barring the defendants from retaining or consulting with any physician who, at any time, had treated any of the plaintiffs.

The trial court sided with the plaintiffs, observing that allowing physicians to render an opinion on the litigation would both interfere with the physician/patient relationship and harm the plaintiffs’ interests in the litigation. It barred defense counsel from consulting with or retaining any physician who had, at any time, treated or consulted with any plaintiff in the litigation, even if that plaintiff was not the subject of the expert testimony. The court also retroactively applied the exclusion order, disqualifying previously retained defense experts if those physicians treated or consulted plaintiffs in the litigation.

The Appellate Division Reopens the Pool
The appellate division reversed, concluding that the trial court’s decision inappropriately equated a plaintiff’s litigation interests with a patient’s medical interests, thereby elevating litigation interests to a level previously unrecognized by binding authority.

According to the appellate division, the central issue in the case was “whether a 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 opined that no such bar exists. Neither the civil justice system nor the American Medical Association’s Code of Medical Ethics bars 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.

Contrary to the lower court’s rationale, the appellate court determined that the physician-patient privilege has “limited significance” in this case. The plaintiffs waived claims of privilege with respect to any medical condition relevant to their lawsuit. Any knowledge treating physicians have of a plaintiff’s medical history or condition irrelevant to this litigation would be protected by the defendants’ proposed protective measures. These measures, in the court’s view, sufficiently struck an adequate balance between the parties’ interest in allowing the retention of physician-experts and safeguarding a plaintiff’s privacy rights.

Further, according to the appellate division, the trial court’s view that a physician is ethically or legally obligated to ensure the continuing trust of a patient turned plaintiff has no application to a physician whose treatment of a patient/plaintiff has ended. Although the “medical interests” of a patient may be consistent or overlap with the patient’s “litigation interests,” such a determination should be made as a matter of professional judgment by the treating physician, not by the patient’s lawyers or the courts.

Ultimately, the appellate division believed that the playing field should be level. All parties in the litigation should have the opportunity to present evidence from the most qualified physicians, and the trial court’s order unfairly impeded defendants’ access to many of those physicians, according to the court.

An Undercurrent of Fairness
“I am not sure if plaintiffs will agree, but from a defense attorney perspective, the appellate court got it right,” opines Rudy Perrino, Los Angeles, former cochair of the ABA Section of Litigation’s Mass Torts Litigation Committee. “Though not specifically mentioned, the court seemed to read an undercurrent of fairness into the rules of procedure by deciding that there is a point where it becomes unreasonable for the defense to keep searching for experts who do not have a prior relationship with existing or potential plaintiffs.”

“Here, the trial court conflated the issue of patient/physician fairness with the litigation interest of the plaintiff,” according to Perrino. “The appellate court found here that the likelihood of violating any privilege between patient and physician was miniscule and, in any event, the defense’s proposed limitation of using experts for those plaintiffs with which they had no prior relationship would eliminate that minuscule risk.”

“This is an unusual case, and that is why the appellate division ruled how it did,” according to Andrew J. Maloney, New York, former cochair of the Section of Litigation’s Mass Torts Litigation Committee and member of the Section’s Special Committee on Jury Innovations. “The number of plaintiffs is growing and the number of experts shrinking.”

“This case is also ironic because it is usually the plaintiffs that experience difficulty retaining experts and usually argue the same issues the defendants argued in this case,” says Maloney. “Plaintiffs often try to find experts only to discover that they are ‘consultants’ to the company they retired from or merely getting retirement benefits from a company in the industry in which a defendant operates. Often the individual is worried of being black balled in the industry for testifying for the plaintiffs’ side. They will not even testify against industry competitors,” according to Maloney.

Maloney agrees with Perrino that fairness is an underlying theme in the rules of procedure. “If something is unfair, the court has the responsibility to level the playing field. Here, due to the shrinking pool of qualified experts, the landscape [of the case] had changed since the trial court's earlier decision, and the appellate court struck a fair balance to allow access to physicians who may have at one time treated a patient who is now a member of the plaintiff class,” he says.

The appellate court noted that during the pending appeal, the number of plaintiffs in the case almost doubled, and the number of treating physicians shrank by almost one-half.

Keywords: qualified expert, expert pool, ethics, appellate court, appellate division

 

 
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