Another Mediocre Decision on Ex Parte Contact with Treaters Has Us Thinking

[Michelle Yeary]

            It’s only been one month since we posted about the disappointing decision in the Xarelto MDL regarding plaintiffs’ ability to have unfettered ex parte conversations with treating and prescribing doctors before those doctors are deposed as critical fact witnesses.  We noted then that it is a hotly contested issue in almost every mass tort.  A fact acknowledged by the latest court to consider the issue in an MDL – In re: Benicar (Olmesartan) Products Liability Litigation, 2016 U.S. Dist. LEXIS 47067, *215 (D.N.J. Apr. 6, 2016) (don’t be daunted by the page number, that’s where the substance of the decision begins – after 214 Lexis pages of counsel appearances).  Unfortunately, the trend seems to be to allow plaintiffs unequal and unregulated access to these key witnesses – to potentially “woodshed” the doctors – and hope that disclosure requirements even the playing field. 

The Benicar decision relies heavily on the recent Xarelto decision, so it doesn’t offer a lot of new ground.  As in Xarelto, the Benicar court found no evidence of improper communications to justify defendants’ request for limitations on ex parte communications.  Id. at *220-21.  Like we said last month, this is like saying we won’t close the barn door until after we see if the horses escape.  Closing it after the fact doesn’t really help – the damage is done.  The Benicar decision goes on to talk about its faith in doctors.  That they will act professionally, won’t be duped by plaintiffs’ counsel, or defer to plaintiffs’ counsel on what medications to prescribe.  Id. at *223.  We hope this is all true, especially that last point.  But there is more to “poisoning the well” than just trying to convince doctors the drug isn’t safe or effective.  Plaintiffs like to show doctors internal company documents that no doctor would ever see in the normal course.  And plaintiffs’ counsel love to ask:  wouldn’t you have liked to see this?  Knowing full well that defendants are highly regulated in what they can and cannot show or share with doctors.  Which brings up another point that the courts seem to gloss over.   They seem to buy into plaintiffs’ argument that defendants have had access to the doctors for years in marketing their drugs.  Id. at *225.  Unfettered, unfiltered, say anything communication?  No way.  Regulated, controlled, fairly-balanced communications?  Yes, those we’ve had.  So, if the courts seem to think that pharmaceutical representatives’ interactions with doctors are on the same footing as plaintiffs’ counsel’s, let’s make them the same and put some parameters in place.  Isn’t that really what defendants are asking for?

            The Benicar court also believe it would be difficult “to police the communications between plaintiffs’ counsel and physicians.”  Id. at *226.  The court simply quotes Xarelto on this.  But we think both courts are making too much ado about enforcement.  How about simply a rule that plaintiffs’ can’t show doctors internal-company documents or litigation documents.  If plaintiffs want to question the doctors about those things, they can do it at the deposition; where defense counsel is present, can object, and can immediately cross-examine. 

Finally, the Benicar court comes to the same conclusion as in Xarelto – all problems can be solved through cross-examination and disclosure.  Id. at *223-24, *230-32.  We told you what we thought of both solutions here. 

Defendants in both Benicar and Xarelto (and others) filed motions seeking to “limit plaintiff’s ex parte communications to only diagnosis, treatment, and medical condition issues.”  Id. at *215.  But the defense doesn’t seem to be getting anywhere with this approach.  We thought it was a balanced request that did not interfere with the patient-physician relationship while simultaneously protecting both sides from prejudice.  But perhaps we have to try something else.  Perhaps we have to argue that if courts aren’t going to restrict plaintiffs’ access, that defendants should have equal access.  Let’s look at how that fits with the reasoning of the courts. 

·       If courts don’t think plaintiffs’ counsel are having improper communications, they should have the same faith in defense counsel.  If doctors won’t be duped by plaintiffs, what reason is there to believe they’ll be duped by defendants? 

·       No need to police anything if both sides can talk to the doctors.  That’s not an obstacle.

·       Both sides can disclosure their communications and both sides can cross-examine the doctors. 

 

Doesn’t seem like there is any impediment to allowing equal access under the analysis being used in these cases.  We’re sure plaintiffs’ first argument will be that many states don’t allow defendants to have ex parte contact with plaintiffs’ treaters.  We know.  We did a 50-state-survey.  But many states do allow defendants to informally communicate with treaters in aid of the discovery process, recognizing that physician-patient privilege no longer applies when a plaintiff put his health at issue and that informal discovery saves time and money.  And the MDL courts don’t seemed to feel tied to state law on this issue anyway.  See Benicar at *227.  So, maybe defendants should rethink making a limiting argument and instead make an expansion argument – expand contact to include defendants too.  We know this has been tried before too, but it might worth trying to use these new decisions to re-hatch an old idea.