If a party retains an expert witness who has actually conducted research on the issue in controversy, the witnesses’ underlying data and analyses will be sought in discovery.  Of course, litigants are entitled to every man’s (and woman’s) evidence, and independent research, but the involvement of an investigator-author as an expert witness will almost certainly increase the scope of discovery.  Counsel will seek manuscript drafts, emails with co-authors, interim data, protocols and protocol amendments, preliminary analyses, among other documents.  Many would-be expert witnesses are reluctant to put their own research into issue.  The result is that expert witnesses frequently do not have “hands-on” experience with respect to the exact issue raised by the litigation in which they serve.

The combination of these factors creates vulnerabilities for witnesses.  Expert witnesses who have not conducted research or written about the issue end up being more attractive to lawyers.  But even these witnesses will be flawed in the eyes of a jury or trial judge:  they have been paid for their time in reviewing literature, preparing reports, sitting for depositions, traveling, appearing at trial.  The compensation of a highly skilled and experienced professional can lead to large amounts of money, amounts sufficient to make juries skeptical and lawyers’ uncomfortable.

Physicians, who care and treat a claimant, represent a litigation Holy Grail:  the prospect of having a neutral, disinterested, and caring expert witness opine about causation, diagnosis, damages, or prognosis, without the baggage of having been selected and paid by lawyers.  A lot of sharp elbows are thrown in the process of trying to align treating physicians with one side or the other’s litigation positions.

In some litigations, in some states, ex parte interviews by defense counsel are forbidden, but similar interviews by plaintiffs’ counsel are allowed.  Much mischief results.  The practice of trying to turn the treating physician into a “causation” or “damages” witness runs amuck, especially when trial courts do not require full Federal Rules of Civil Procedure Rule 26 disclosures from the treating physicians.

Jurors will want to know what treating physicians said, and may regard them as disinterested.  Indeed, the supposed neutrality and beneficence of the treating physician is often emphasized by counsel in their addresses to juries.  See, e.g., Simmons v. Novartis Pharm. Corp., 2012 WL 2016246, *2, *7 (6th Cir. 2012)((affirming exclusion of retained expert witness, as well as a treating physician who relied solely upon a limited selection of medical studies given to him by plaintiffs’ counsel); Tamraz v. BOC Group Inc., No. 1:04-CV-18948, 2008 WL 2796726 (N.D.Ohio July 18, 2008)(denying Rule 702 challenge to treating physician’s causation opinion), rev’d sub nom. Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010)(carefully reviewing record of trial testimony of plaintiffs’ treating physician; reversing judgment for plaintiff based in substantial part upon treating physician’s speculative causal assessment created by plaintiffs’ counsel), cert. denied, ___ U.S. ___ , 131 S. Ct. 2454, 2011 WL 863879 (2011).  See generally Robert Ambrogi, “A ‘Masterly’ Opinion on Expert Testimony,” Bullseye: October 2010;   David Walk, “A masterly Daubert opinion” (Sept. 15, 2010);  Ellen Melville, “Comment, Gating the Gatekeeper: Tamraz v. Lincoln Electric Co. and the Expansion of Daubert Reviewing Authority,” 53 B.C. L. Rev. 195 (2012) (student review that mistakenly equates current Rule 702 law with the Supreme Court’s 1993 Daubert decision, while ignoring subsequent precedent and revision of Rule 702).

In the silicone gel breast implant litigation, plaintiffs corralled a herd of rheumatologists who were sympathetic to their claims of connective tissue disease, and who would support their “creative” causation theories.  As a result, defense rheumatologists were not likely to have seen many of the claimants in their practice.  The plaintiffs’ counsel capitalized upon this “deficiency” in their experience, by attacking the defense experts’ expertise and their experience with the newly emergent phenomenon of “silicone-associated disease” (SAD).  The treating physicians were involved early on in the SAD litigation exploit.

In New Jersey, defense counsel have a limited right to ex parte interviews of treating physicians.  Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985).  Certain New Jersey state trial judges, however, have ignored the Stempler holding in mass tort contexts, and have severely limited defendants’ ability to get information from treating physicians.  Last week, the New Jersey Appellate Division waded into this contentious area, by reversing an aberrant trial judge’s decision that severely restricted defendants’ retention of any physician who had treated a plaintiff in the mass tort.  In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4 (N.J. Super. App. Div. June 1, 2012).

The defendants, Johnson & Johnson and Ethicon, Inc., designed, made, marketed, and sold pelvic mesh medical devices for the treatment of pelvic organ prolapse and stress urinary incontinence.  In re Pelvic at 2.  Several hundred personal injury cases against the defendants were assigned to the Atlantic County law division.  In a pretrial order, the trial court barred “defendants from consulting with or retaining as an expert witness any physician who has at any time treated one or more of the plaintiffs.”  Id. Remarkably, the trial court’s order was not limited to attempts to contact a physician for purposes of discussing a particular plaintiff’s case.  The trial court’s order had the effect of severely limiting defendants access to expert witnesses, as well as disqualifying expert witnesses already retained.  Plaintiffs’ counsel, however, were free to line up their clients’ treating physicians, and other treating physicians with substantial clinical experience with the allegedly defective device.

The Appellate Division reversed the trial court’s asymmetrical rules regarding treating physicians as manifestly inconsistent with the New Jersey Supreme Court’s mandate in Stempler and other cases.  The Appellate Division showed little patience for the trial court’s weak attempt to justify the uneven-handed treatment of access to treating physicians.  The trial court had invoked the potential for interference with the doctor-patient privilege as a basis for its pretrial order, but hornbook law, in New Jersey and in virtually every state, treats the filing of a lawsuit as a waiver of the privilege.  Id. at 11.  Similarly, the Appellate Division rejected the trial court’s insistence that a treating physician was obligated to protect and advance patients’ litigation interests by either testifying for patients or refraining from testifying for defendants. Id. at 15.  A treating physician has no “duty of loyalty” to help advance a patient’s litigious goals.  Id. at 26. The trial court had myopically confused a duty to provide medical care and treatment with helping plaintiffs’ counsel advance their view of the patients’ welfare.

The Appellate Division’s reversal is a welcome return of sanity and equity to New Jersey law of expert witnesses.  The over-reaching rationale of the trial court posed some incredible implications.  The appellate court noted, as an example, that “radiologists, orthopedists, and neurologists who routinely testify as experts for the defense in numerous personal injury cases in our courts are likely to be treating or consulting physicians for other patients with similar injuries, and some of those patients may also have filed lawsuits or may do so in the future.”  Id. at 16.  The trial court’s reasoning would strip defendants in virtually all personal injury litigation of access to expert physician opinion.  In asbestos litigation, for instance, the defense would find any and all pulmonary physicians who was treating a worker with asbestos-related disease to be off limits to consulting or testifying.  The Appellate Division’s strong ruling should be seen as a cloud on the validity of the continuing practice of barring defense counsel from ex parte interviews of treating physicians in mass or other tort litigation.