United States: Louisiana Addresses Ex Parte Contact With Treaters

Last Updated: April 10 2017
Article by Lea Ann Smith

The question of whether plaintiffs' counsel should be permitted to have unfettered ex parte communication with treating and prescribing physicians has been heavily litigated. Unlimited contact between plaintiffs' counsel and physicians is an area of concern particularly in toxic tort and pharmaceutical cases. These physicians are critical fact witnesses and allowing ex parte communication beyond their care and treatment of the plaintiff creates an imbalance and an opportunity for "woodshedding" by plaintiffs' counsel. "Woodshedding" is the process by which plaintiffs seek to coach or prejudice the physician during these communications. Plaintiffs use this contact as a chance to preview their liability themes and in some cases provide the physicians with defendants' internal documents without context. Plaintiffs are afforded a distinct advantage over defendants when they are permitted unrestricted ex parte access to these physicians prior to their depositions.

Recently, courts have recognized this disadvantage and placed restrictions on such ex parte communications with prescribing or treating physicians. See, In re Ortho Evra Products Liability Litig., MDL Docket No. 1742, No. 1:06-4000, 2010 WL 320064 (N.D. Ohio Jan., 20, 2010); In re Chantix Products Liability Litig., (No. 2:09-CV-2030-IPJ, 2011 WL 9995561 (N.D.Ala. June 30, 2011); In re Pelvic Mesh/Gynecare Litigation, Docket No. ATL-L-6341-10, (N.J. Super. Ct. Law Div. Dec. 3, 2013); and In re Actos Products Liability Cases, No. BC411678 (Cal. Super. Ct. Mar. 20, 2015). Unfortunately, this trend did not continue in a recent decision from the Eastern District of Louisiana involving claims relating to plaintiffs' use of the medication Xarelto.

Defendants in the In re: Xarelto Products Liability Litigation, 2016 WL 915288 (E.D. La. March 9, 2016) case filed what was referred to by the Court and the parties as the "Woodshed Motion." In the motion, Defendants sought an order limiting plaintiffs' counsel's ex parte communications with plaintiffs' treaters to the "diagnosis and treatment of the plaintiff and the plaintiff's medical condition." The approach advanced by the Defendants would not result in a complete ban on all communications with the physician, therefore, there would be no interference with the patient-physician relationship. The prohibition would be limited to communication regarding plaintiffs' liability theories including providing information about Defendants' conduct and warnings. Further, the defense proposal not only banned defense counsel from similar contact but also prohibited defense counsel from any ex parte communication with physicians regarding the diagnosis and treatment of the plaintiff. To be protected from the prejudice of woodshedding by Plaintiffs' counsel, the Defendants were willing to forego contact with the physician they would normally be permitted to have.

The Court declined to impose restrictions on the substantive content of Plaintiffs' ex parte contacts. First, the Court found imposing such restrictions would be both unenforceable and unreasonable. The Defendants' position was reframed in the Court's order as an effort to "sanitize" all advocacy surrounding liability from the plaintiffs' counsel's discussions with the physicians. The Court noted it lacked "the ability to surgically remove delicate insinuations from the individual sentences of Plaintiffs' counsel." Further, implementation of Defendants' proposal to "cleanse advocacy" from the Plaintiffs' contacts was not enforceable.

The Court's position is perplexing as the "cleansing" discussed was not the relief sought. Defendants requested an order prohibiting the parties from communicating with the physicians regarding their liability theories. Defendants did not request a ban on plaintiffs' efforts to be an advocate. Rather, they sought to prevent plaintiffs from providing the physicians with documents and information outside the purview of the doctors' role in the case, which is to testify as fact witnesses regarding the care and the treatment of their patients.

The Court also rejected a proposed compromise from the Defendants that allowed both parties to engage in the same ex parte contact concerning liability. The Court found this proposal placed an undue burden on the physician-patient relationship stating it would be "even more difficult for Defendants to surgically separate discussion on liability from a physician's understanding of his treatment of individual patients." The compromise proposal was viewed by the Defendants arguing that if Plaintiffs are allowed to woodshed, they should be allowed to do the same. The Court dismissed this proposal by stating "two wrongs don't make a right." The Court's prescription to cure the uneven playing field created by ex parte communications was "a strong dose of crossexamination" at the physician's deposition. It was suggested a strong cross-examination would mitigate any abuse or imbalance of allowing the ex parte contact. This is unlikely as the plaintiffs through these ex parte communications are afforded the benefit of conducting their discovery deposition informally and privately during their discussions with the physician. Ultimately, the Court provided some relief to defendants by requiring disclosure by plaintiffs of meetings with the physician and the identity of documents shown to or provided to the physician in connection with the meeting at least 48 hours prior to the physician's deposition. In short, Defendants would be alerted as to the documents the physician reviewed and have two days to prepare to cross-examine the witness while plaintiffs have an unlimited ex parte access.

The proposals presented by the Defendants struck a balance between allowing plaintiff's counsel access to physicians and preventing woodshedding. These proposals if accepted would have allowed the doctors to testify in an unbiased way without either party having an unfair advantage. Hopefully, the trend seen in other cases of allowing restrictions on communication with treating and prescribing physicians will continue and this case will not be followed in other courts.

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