Access to underlying data continues to be a difficult and contentious issue in litigation and in the world of public health. Healthcare providers have made intemperate demands upon pharmaceutical manufacturers to produce underlying data from clinical trials, but often the same providers object the loudest when asked to share underlying data from their own observational or experimental studies.
Last month saw a judicial rejection of an effort by New York researchers to resist production of underlying data. Plaintiffs in the World Trade Center health effects litigation sought to compel their treating physicians at the Mt. Sinai Health System to testify to their opinions about general and specific causation of the plaintiffs’ alleged injuries. Previously, in discovery depositions of the plaintiffs’ treating physicians as fact witnesses, Mt. Sinai Hospital’s attorneys objected to plaintiffs’ counsel’s efforts to elicit causation opinions not recorded in the plaintiffs’ personal medical records. Plaintiffs then moved to compel the treating physicians to give opinions on causation, and to produce underlying data from their published papers on the claimed health effects of exposure to World Trade Center dust. The hospital opposed these motions on grounds that its neutrality in the litigation would be compromised by compulsory testimony and production of data.
In a short opinion, Judge Alvin K. Hellerstein refused plaintiffs’ motions to compel testimony, but granted their motion to compel production of underlying data. In re World Trade Center Lower Manhattan Disaster Site Litig., ___ F.R.D. ___, 2015 WL 220988, at *1-2 (S.D.N.Y. Jan. 15, 2015). Judge Hellerstein acknowledged that, in rare instances, federal trial courts have compelled experts to provide opinion testimony. Carter–Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir.1972) (“The weight of authority holds that, although it is not the usual practice, a court does have the power to subpoena an expert witness and … require him [or her] to state whatever opinions he [or she] may have previously formed.”).
Judge Hellerstein cited the five factors articulated in Kaufman v. Edelstein, as governing the exercise of discretion in compelling expert testimony:
(1) “[T]he degree to which the expert is being called because of his knowledge of facts relevant to the case rather than in order to give opinion testimony”;
(2) “the difference between testifying to a previously formed or expressed opinion and forming a new one”;
(3) “the possibility that, for other reasons, the witness is a unique expert”;
(4) “the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify”; and
(5) “the degree to which the witness is able to show that he has been oppressed by having continually to testify[.]”
2015 WL 220988, at *2-3, citing and quoting Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir.1976).
Considering these factors, Judge Hellerstein refused to enforce the subpoena ad testificandum against the Mt. Sinai physicians. Plaintiffs have their own retained expert witness, Dr. Tee Guidotti, who was prepared to testify about both specific and general causation of the plaintiffs’ claimed injuries. The underlying data gathered by Mt. Sinai physicians and scientists, however, were another matter:
“However, it is undisputed that the scope and detail of the research conducted by the Mt. Sinai WTC Health Program is unparalleled. This litigation can only benefit from a full record and the inclusion of the relevant data underlying the research conducted by the Mt. Sinai WTC Health Program is appropriate. Accordingly, Mt. Sinai is ordered to produce all Mt. Sinai WTC Health Program data pursuant to the protocol established in In re World Trade Center Disaster Site Litigation, 21–mc–100, accounting for the redaction of personal identifying information and other sensitive patient material.”
Id. at *4; see also id. at *1.
Cynical observers may wonder whether the Mt. Sinai opposition to the subpoenas and motions to compel was posturing. The hospital and many of its physicians have been outspoken advocates on many occupational and environmental issues. Perhaps like Brer Rabbit, they were protesting not to be thrown in the briar patch. Or maybe, they realized that they could not resist the subpoena for data unless they also declined to testify about their opinions. In any event, Judge Hellerstein maintained the right of expert witnesses to hold their opinions to themselves and to avoid participating in the litigation system, while ensuring that the data are available to all. The plaintiffs may well have been clever by halves in bringing their motion.
