Opinion
CIVIL ACTION NO. 14-7315 NO. 14-7316 (Ruble) NO. 14-7318 (Stelzer) NO. 14-7317 (Strimel) NO. 15-0384 (Walsh) NO. 16-1458 (Dunstan) NO. 16-1645 (Clarke) NO. 16-1921 (Souto) NO. 16-2166 (Bailey) NO. 16-2154 (Campos) NO. 16-2717 (Bolds) NO. 16-3049 (Tulgetske) NO. 16-3409 (Abeyta) NO. 16-3589 (Burgis) NO. 16-3710 (Dong) NO. 16-3730 (Mantor) NO. 16-3731 (Olague) NO. 16-3732 (Gross) NO. 16-3733 (Johnson) NO. 16-3766 (Summerlin) NO. 16-3767 (Rodvill) NO. 16-3769 (Quinton) NO. 16-4081 (Bradford) NO. 17-2915 (Wistrom) NO. 17-3968 (Bobo) NO. 17-4417 (Guess) NO. 17-4936 (Gonzalez) NO. 18-37 (Jenson) NO. 18-836 (Morua) NO. 18-837 (Galan) NO. 18-838 (Alfaro) NO. 18-908 (Archer)
04-13-2020
HELEN McLAUGHLIN v. BAYER ESSURE, INC., et al. And Related Actions
REPORT & RECOMMENDATIONS TO RESOLVE A DISPUTE REGARDING THE ORDER RE: PROTOCOL GOVERNING CASE-SPECIFIC FACT DEPOSITIONS AND DISCOVERY
On February 24, 2020, the Court entered AN ORDER RE: PROTOCOL GOVERNING CASE-SPECIFIC FACT DEPOSITIONS AND DISCOVERY based on a stipulation among the parties. Since that time, the parties have met and conferred about two aspects of the depositions and pre-deposition preparation of the Plaintiffs' treating physicians (I use the term "treating physicians" as embracing both "treating physicians" and "healthcare providers," terms used by the parties) who, all parties agree are third-party fact, rather than expert, witnesses. The parties disagree about (1) the appropriate parameters of counsels' ex parte pre-deposition contact and communications with the treating physicians and (2) the order and priority of questioning during the depositions. See Exhibit A, attached, which is an agreed draft of an amended Order which sets forth both parties' proposed language.
It should be noted that as none of the treating physicians in the Bellwether Pool lives or conducts his/her practice in Pennsylvania or within 100 miles of the Eastern District of Pennsylvania, none can be compelled to come to Pennsylvania either for deposition or trial. Therefore, there is a substantial likelihood that few if any of these deponents will testify at trial and that their testimony will likely be offered at trial via video presentations of the direct and cross examinations elicited at their depositions. As "trial depositions," the evidence they contain will likely be offered by the Plaintiffs as the equivalent of a live direct examination with the information developed at deposition by Defendants offered in lieu of a live cross-examination. As Rule 30(c)(1) sets forth: "Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence." In addition, physician-patient privilege has been waived in this case because a plaintiff waives physician-patient privilege when she sues for personal injuries, thereby placing her physical or mental condition in issue. Furthermore, there is no privilege which applies to the communications between third parties and the parties' counsel. A. PRE-DEPOSITION EX PARTE COMMUNICATION Summary of the Parties' Proposals
Plaintiffs propose that the Court order that Plaintiffs' counsel be permitted to meet with and prepare the treating physicians as they would with any other third party witness. Indeed, it is ordinarily accepted that an attorney may and indeed, should, meet with a person whose deposition has been noticed by any party, assuming the deponent-witness chooses to meet with counsel. Plaintiffs also request the Court to order that there shall be no limitation, within the bounds of the ethical rules, on the nature or subject of the counsel-deponent communication required for preparation for the deposition. Finally, Plaintiffs argue that Defendants' counsel should be prohibited from conducting ex parte communications of any type with the treating physicians.
Defendants argue that both parties should be permitted to communicate ex parte with the treating physicians (assuming their consent), but that the ex parte communications shall be limited to "the patient's medical condition, including only the physician's records, course of treatment, product warnings and related matters and excluding liability issues or theories and Defendants' research documents or related matters." In addition, Defendants propose that if any attorney makes ex parte contact with a treating physician, such party shall disclose to opposing counsel that such communication took place and provide a list of any materials shared with the health provider prior to the deposition. Discussion
In ordinary litigation, where a prospective third party, fact deponent is noticed or subpoenaed for a deposition, counsel for any party is free to communicate ex parte with the deponent, assuming the consent of the deponent or his/her counsel, if represented. In the words of Judge Kennelly in another mass tort case:
In a typical case, there are no restrictions on a party's contacts with a witness-which is what the treating physicians are-prior to the witness' deposition. Either side's counsel may interview the witness and prepare him or her for the deposition by previewing the questions that may be asked, reviewing relevant documents, and so on. There is nothing at all improper about this. Indeed, adequate witness preparation is a key element of good trial (and deposition) preparation...In short, there is no prohibition on pre-deposition or pre-testimony contacts between a lawyer and the ordinary fact witness. In re Testosterone Therapy Prods. Liability Litig. Coordinated Pretrial Proceedings, 167 F. Supp. 3d 936, 937 (N.D. Ill. 2016).
If the Court permits Plaintiffs' counsel to communicate ex parte with the treating physician-deponents, Defendants raise the specter of improper "horseshedding," which theoretically attends ex parte communications. There is a dearth of decisions in which such activity has been reported, but the danger of excessive and unethical horseshedding exists in EVERY ex parte communication between counsel and any witness, particularly including the client. Though some courts have responded to Defendants' expressed concern in mass tort litigation by limiting the subject matter of the ex parte communications between Plaintiffs' counsel and third parties by placing limitations on the subject matter, as Defendants propose above, many other courts have ruled that placing such limitations is unwarranted in the absence of some particularized showing of bad faith and are unwise because it is essentially impossible to effectively police such communications. The courts that have resisted the imposition of limitations have relied on the ability of opposing counsel through cross examination at BOTH the deposition and trial to expose the nature of the non-privileged ex parte, pre-deposition communications. See, e.g., In re Testosterone Therapy Prods. Liability Litig., supra.; In re E.I. Du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:13-MD-2433, 2014 WL 1653158 (S.D. Ohio 2014); In re C.R. Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10-md-2187, Pretrial Order No. 48, (S.D. W.Va. 2012); In re Kugel Mesh Hernia Repair Patch Litig., No. 07-1842ML, slip. op. at 3 (D.R.I. 2012).
The Special Discovery Master sees no reason for the court to depart from the usual practice of letting counsel for BOTH sides (see discussion infra.) meet with prospective deponents pre-deposition where the deponents consent. Furthermore, the Special Discovery Master rejects the imposition of the limitations on such communications proposed by Defendants. Indeed the limitations proposed by Defendants would preclude Plaintiffs' counsel from discussing key issues in the case to which the physicians are privy, including medical malpractice, negligent training, failure to warn, and alternative treatments that may have been considered, to name a few.
The Special Discovery Master does agree with Defendants and a number of courts, that counsel who conduct ex parte meetings with the treating physicians share with opposing counsel at least 72 hours before that physician's deposition the following: the fact that such communication occurred, the date of such meeting, and a list of all materials shared with the treating physician.
Finally, though the Plaintiffs have argued strenuously for ex parte, pre-deposition access to the treating physicians, they have argued equally strenuously to deny Defendants' counsel pre-deposition access to these same witnesses. In doing so, Plaintiffs rely on the language of Pa. R. Civ. P. 4003.6 which is both inapposite and has no force or effect in a federal diversity court as well as two district court opinions in mass tort cases which barred pre-deposition access to hundreds, if not thousands, of deponents as a matter of convenience and rulings from one district court which seems to base its rulings on, with all due respect, a rather novel, physician-patient HIPPA privilege "penumbra' (for lack of a better term) which applies even though the privilege is waived, a position rejected by most courts. The Special Discovery Master is unpersuaded by these authorities and recommends that in the interest of the equality of access to critical evidence, avoidance of surprise, and the purposes of the Federal Rules "to promote the just, fair speedy resolution of disputes," that the Defendants enjoy their traditional access to the treating physicians on the same terms as recommended above for Plaintiffs. B. PRIORITY OF EXAMINATIONS DURING THE DEPOSITIONS OF THE TREATING PHYSICIANS
Generally, the party who notices or subpoenas a witness for deposition has the right to begin the questioning of the deponent. In addition, given that a trial deposition is ordinarily taken to mimic the order of trial, it would make sense that the party to whom the witness is facially favorable and would likely be called as that party's witness at trial (were she available) would be questioned first by that party in a trial deposition. Thus, as the deponents among the Bellwether treating physicians would likely be Plaintiffs' witnesses at trial, it would make sense that Plaintiffs' counsel should have the first opportunity to interrogate these deponents.
That said, the Bellwether process generated some prospective deponents who are essentially "noticed" by the Plaintiffs and others by the Defendants. In addition, we have to wonder if some of the deponents chosen by Defendants would all necessarily, after deposition, be entirely favorable to Plaintiffs? However, it is hard to imagine that Plaintiffs would not need to call every treating physician (even if less than 100% favorable) to make a prima facie case. In sum, the Special Discovery Master, though mindful that the deposition appearance of these Bellwether deponents is somewhat different from the norm (in simpler litigation), recommends that the Court exercise its discretion to order that Plaintiffs' counsel has priority of questioning in the depositions of the treating physicians as they would at trial. Therefore, • the Special Discovery Master recommends that Plaintiffs' Proposed Paragraph 15 be adopted by the Court and Defendants' Proposed Paragraph 15 be rejected; and • the Special Discovery Master recommends that Defendants' Proposed Paragraph 16 be adopted absent the subject matter limitations regarding the content of the ex parte communications. Date: April 13, 2020
Respectfully submitted,
/s/ David A. Sonenshein
(s)__________
David A. Sonenshein, Esq.
Special Discovery Master