In re Pelvic Mesh-Gynecare Litig., 426 N.J. Super. 167 (App. Div. 2012). In this mass tort matter involving medical devices that are used to treat pelvic organ prolapse and stress urinary incontinence, the Law Division barred defendants from using as an expert witness any physician who had at any time treated one of the hundreds of plaintiffs. Defendants sought leave to appeal. In a lengthy and comprehensive opinion by Judge Ashrafi, joined by Judge Rodriguez, the Appellate Division reversed. Judge Sabatino filed a concurring opinion.
This matter was assigned by the Supreme Court to a single judge for joint case management. Defendants moved for a protocol, similar to that used in some federal cases, under which defendants could consult with and/or retain as defense experts physicians who had treated a plaintiff in the case, provided, however, that no doctor could communicate with defendants about his or her own patient-plaintiff and no doctor could be used as an expert in his or her own patient-plaintiff’s case.
Defendants sought this provision because they alleged that the several hundred plaintiffs, collectively, had been treated by over 1,000 doctors. Many of those doctors were no longer treating their patient-plaintiffs. To disqualify all of those doctors as potential defense experts, merely because they had at one time treated a patient-plaintiff, would wrongly restrict defendants’ ability to retain qualified experts.
The Law Division disagreed and declined to adopt defendants’ proffered protocol. The judge also specifically barred two particular defense experts whom defendants had learned, after hiring those doctors, had treated patient-plaintiffs but were no longer doing so. The Law Division stated that it might consider modifying its ruling “if future events reveal that defendants are unable to retain satisfactory expert assistance in this litigation.”
Defendants sought leave to appeal, which the Appellate Division granted. The panel reversed the Law Division’s ruling and remanded for entry of a protocol, though not precisely the one that defendants had sought.
Judge Ashrafi first rejected the physician-patient privilege, one of the grounds cited by the Law Division, as a basis for rejecting defendants’ proposed protocol. The privilege had only “limited significance” because plaintiffs had, by filing suit, waived the privilege as to “any medical condition relevant to their claims,” and the protocol informed doctors that they were required to preserve the privilege to the extent required by law, including as to patient-plaintiffs whom those doctors had treated.
Judge Ashrafi saw the key issue as whether allowing a doctor to support “litigation interests” adverse to his or her patient, though not in that patient’s particular case, undermined effective medical treatment or eroded trust between patients and their doctors. He concluded that doctors have no “duty of loyalty” to “support a current or past patient’s interest in litigation.” In fact, prior Supreme Court cases had held that the defense in a medical malpractice or products liablity case could present causation testimony adverse to a plaintiff even when that testimony came from that plaintiff’s own treating doctor, and that the defense could interview, outside the presence of the patient-plaintiff and his or her counsel, if the doctor consents. No case precludes a doctor from testifying adversely to “a patient’s interests in litigation, even if such testimony might erode the patient’s trust in the physician.”
Judge Ashrafi went on to discuss out-of-state opinions on which plaintiffs had relied, as well as the American Medical Association’s Code of Medical Ethics. Nothing in any of those sources compelled a conclusion that a doctor has a duty not to disagree with his or her patient’s substantive claims in litigation. Patients’ “litigation interests” (that is, their desire to win their cases) are often distinct from their “medical interests,” which doctors may not compromise.
Judge Ashrafi noted some issues that still had to be ironed out. He also recommended to the Law Division on remand, but did not mandate, certain protective measures to be added to the protocol so as to protect patients.
Judge Sabatino, in his concurring opinion, would have limited the decision to one based on the unfairness and burdensomeness of depriving defendants of capable expert witnesses. He would not have reached, for example, the “duty of loyalty” issue discussed by Judge Ashrafi. Instead, he would have left that and other issues “for future consideration, ultimately by the Supreme Court.” But Judge Sabatino joined his colleagues in reversing the Law Division and remanding the case for entry of a protocol that affords defendants a broader right to retain experts while still protecting the interests of patient-plaintiffs.
Judge Sabatino was certainly correct to suggest that some of the thorny, overarching issues implicated by this case should be decided by the Supreme Court. If plaintiffs seek leave to appeal to that Court, we will see whether the Court chooses to address those questions now or later.