The Deposition of the Treating Physician:

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1 The Deposition of the Treating Physician: The Trial Lawyer s Perspective Pamela J. Yates Kaye Scholer LLP 1999 Avenue of the Stars, Suite 1600 Los Angeles, CA (310)

2 Pamela J. Yates, a partner in Kaye Scholer LLP s product liability group in Los Angeles, has extensive experience in mass tort work and has acted as national coordinating counsel representing clients in claims involving pharmaceuticals and medical devices. In July 2011, she achieved a defense verdict in a hormone therapy case in federal court in West Virginia. From , Ms. Yates has been recognized as one of California s Top Women Litigators in Daily Journal s supplement feature.

3 The Deposition of the Treating Physician: The Trial Lawyer s Perspective Table of Contents I. Approaching the Treating Physician Deposition The Causation Story II. Exercising Caution When Contacting Treating Physicians III. Admissibility of Treating Physician s Testimony on Causation IV. Conclusion The Deposition of the Treating Physician: The Trial Lawyer s Perspective Yates 359

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5 The Deposition of the Treating Physician: The Trial Lawyer s Perspective I. Approaching the Treating Physician Deposition The Causation Story In the majority of pharmaceutical mass torts cases, a trial lawyer does not get involved until after the case specific discovery process has been completed in a particular case. At that point, the lawyer expects perfection when he or she reviews the case file. This means that the attorneys conducting discovery must not only focus on obtaining the necessary factual story of the case, but must also anticipate trial strategy and what will be needed in order to put forth a compelling defense. One of the areas that requires the greatest anticipation is the deposition of treating physicians. Beyond the ordinary due diligence and research that all attorneys should do before they depose plaintiff s treating physician, they must also consider the following objectives when preparing for the deposition: (1) what are the primary themes of the case that the trial team will present to the jury; (2) what is the role of this treating physician in the presentation of those themes; and (3) if the testimony given by the treating physician is favorable, how do we ensure that it is admissible at trial (or how do we establish that unfavorable testimony is inadmissible). In pharmaceutical mass torts, one of the primary areas of focus is in the area of causation especially since the Supreme Court s articulation of the Daubert standard aimed at ensuring the reliability and credibility of scientific evidence admitted at trial. As both parties will likely present expert witnesses with conflicting viewpoints on causation, a primary objective for any trial team is to line up the plaintiff s treating physician testimony consistent with the defendant s perspective on the case and with the testimony of their experts. The ultimate goal, of course, is to show that not only do defendant s experts disagree with plaintiff s causation witnesses, but also that physicians treating these medical conditions every day do not subscribe to the views expressed by plaintiff s experts. The treating physician typically represents the first factual link between plaintiff and any causation opinion regarding his or her disease. Most plaintiffs have either consulted with or received medical treatment from this physician prior to ever claiming that defendant s product may have played a role in that illness. Thus, beyond issues supporting alleged damages or claims of pain and suffering, the treating physician provides a front-line medical perspective regarding opinions of causation with respect to defendant s product or other alternative causes. Making matters difficult for the defense, however, is the fact that many jurisdictions prohibit ex parte contact with plaintiff s doctors. From the outset, defendants must exercise caution not only with respect to discussing plaintiff s medical condition, but also with respect to matters such as scheduling these depositions. Despite the treating physician s evidentiary role in the causation story, other significant obstacles remain regarding the admissibility of opinions as to what did or did not cause plaintiff s illness. If approached properly, the trial lawyer s expectations of perfection could, at a minimum, be delivered in some variation. II. Exercising Caution When Contacting Treating Physicians States are split over the issue of allowing a defendant to engage in ex parte medical contact with a plaintiff s physician. The most articulated reason for prohibiting defense interview is the privacy rule of the Health Insurance Portability and Accountability Act (HIPAA) of USC 201. The privacy rule provides that a provider may use or disclose protected health information, provided that the individual is informed in advance of the use or disclosure and has the opportunity to agree to or prohibit or restrict the use or dis- The Deposition of the Treating Physician: The Trial Lawyer s Perspective Yates 361

6 closure. 45 C.F.R Because of the Supremacy Clause, some courts construe HIPAA as creating a physician-patient privilege that preempts a defendant from engaging in either formal or informal discovery. However, several courts acknowledge that a plaintiff waives any physician-patient privilege when they bring personal injury actions because they affirmatively place their mental or physical condition in issue. For example, New York s highest court could see no reason why a nonparty treating physician should be less available for an off-the-record interview than other types of fact witnesses. Arons v. Jutkowitz, 880 N.E.2d 831, 837 (N.Y. 2007). California also allows informal interviews with treating physicians, but counsel must comply with the state s confidentiality of medical information act. Heller v. Norcal Mutual Insurance Co., 876 P.2d 999, 1005 (Cal. 1994). Further complicating the issue is that federal courts in California are split. Crenshaw v. Mony Life Insurance Co., 318 F. Supp.2d 1015, (S.D. Cal. 2004) (holding that ex parte contacts are not allowed); but cf. Galarza v. United States, 179 F.R.D. 291, 294 (S.D. Cal. 1998) (approving informal interviews). In Georgia, informal interviews were allowed by statute until the Georgia Supreme Court held that the statute was preempted by HIPAA. Moreland v. Austin, 670 S.E.2d 68, (Ga. 2008). However, the court recently held that, although HIPAA applies, defendants may apply for a qualified protective order to allow informal interviews under HIPAA whether the plaintiff consents or not. Baker v. Wellstar Health Systems, Inc., 703 SE 2d 601(Ga. 2010). By context, a Florida statute strictly prohibits defendants from conducting informal interviews with plaintiff s treating doctors. Fla. Stat (8); accord Acosta v. Richter, 671 So.2d 149, 152 (Fla. 1996). Illinois has gone even further it does not allow defense counsel to have informal discussions with treating doctors. Burger v. Lutheran General Hospital, 759 N.E.2d 533, (Ill. 2001), and the Supreme Court even held it was unconstitutional for the legislature to permit informal interviews by statute. Best v. Taylor Machine Works, 689 N.E.2d 1057, 1100 (Ill. 1997). The bottom line is that every state has its own rules and idiosyncrasies for whether or how defense counsel may informally interview treating physicians, so it is important to check the applicable law before proceeding. But checking the applicable state law still may not be enough. When a pharmaceutical litigation is coordinated in a Multidistrict Litigation ( MDL ) proceeding, a variety of procedural orders issued by the coordinating judge may also come into play. For example, in the Hormone Therapy litigation, coordinated in the Eastern District of Arkansas, the coordinating judge issued an order prohibiting ex parte communications with respect to Arkansas residents without the consent of plaintiff s attorney. In re Prempro Prods. Liab. Litig., Order [Dkt. 789], Case 4:03-cv-1507-WRW (Sept. 16, 2005). The Order further prohibited such contact even with respect to cases where a non-arkansas resident is suing a defendant without first seeking leave of Court and showing that the state law applicable to that plaintiff s claims permits such interviews. Id. Likewise, in the Vioxx MDL proceedings, the federal trial court prohibited communications between defendants and treating physicians as to plaintiffs in all fifty states. In re: Vioxx Products Liability Litigation, Order [Dkt. 729], Case 2:05-md-1657-EEF-DEK at 9-10 (July 22, 2005). These examples underscore the tensions arising when MDL proceedings intersect with issues involving state law. Even when the appropriate legal criteria permit ex parte communications with treating physicians are met, there can be far-reaching ramifications that arise from making such contact beyond a plaintiff s particular case. III. Admissibility of Treating Physician s Testimony on Causation When trying to get physician testimony admitted at trial that arguably goes beyond the care and treatment of the plaintiff, such as the cause of the disease being claimed, there are important expert designation rules that must be followed, and standards vary within those rules from state to state. 362 Drug and Medical Device Seminar May 2012

7 In general, Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). If such a witness either is retained or specially employed to provide expert testimony, the disclosing party must also provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Courts have held that a non-retained treating physician may testify within a permissive core on issues pertaining to treatment, based on what he or she learned through actual treatment and from the plaintiff s records up to and including that treatment, without having to disclose an expert report per Rule 26(a) (2)(B). Fielden v. CSX Transportation, Inc., 482 F.3d 866, 871 (6th Cir. 2007); See also Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 825 (9th Cir. 2011), Krischel v. Hennessy, 533 F.Supp.2d 790, 795 (N.D. Ill. 2008)( When a treating physician limits his testimony to his observation, diagnosis and treatment, there is no need for a Rule 26(a)(2)(B) report. ). However, the issue becomes more convoluted where the treating physician intends to state an opinion concerning the cause of the plaintiff s injuries. Coleman v. Am. Family Mut. Ins. Co., 274 F.R.D. 641, 644 (N.D. Ind., 2011) citing Meyers v. National R.R. Passenger Corp., 619 F.3d 729, (7th Cir. 2010); Krischel, 533 F.Supp.2d at 796. The Sixth, Seventh and Ninth Circuits hold that if a treating physician forms his opinion as to causation during the course of treatment, he or she may testify to those opinions without a 26(a)(2)(B) expert report. See Fieldsen, 482 F. 3d at 871 (6th Cir.) (holding that a formal report is not required when determining causation is an integral part of treating a patient); Meyers, 619 F.3d at ( a treating physician who is offered to provide expert testimony as to the cause of the plaintiff s injury, but who did not make that determination in the course of providing treatment, should be deemed to be one retained or specially employed to provide expert testimony in the case, and thus is required to submit an expert report in accordance with Rule 26(a)(2) ); Goodman, 644 F.3d at 826 (9th Cir.) ( a treating physician is only exempt from Rule 26(a)(2)(B) s written report requirement to the extent that his opinions were formed during the course of treatment. ). The Eighth Circuit goes further, requiring disclosure of a written report any time a party seeks to have a treating physician testify as to the causation of a medical condition, as opposed to merely the existence of the condition. Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010). However, it is important to note that a significant change has been made in the Rules pertaining to treating physicians in the past two years. Effective December 2010, the Rules now require that a party wishing to present testimony from non-retained experts at trial (such as treating physicians), must file a disclosure regarding any such expert s opinions and the facts supporting those opinions. See Notes of Advisory Committee on 2010 Amendments to Fed. R. Civ. Proc. 26(a)(2)(C). The amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. Id. While the amendment appears to address historical tensions where plaintiffs attempt to satisfy their causation burden through undisclosed experts who have not been subject to deposition, see e.g., Brooks 20 F.3d at 897, the practical applications have already been taken futher. A recent example of a court s strict enforcement of this rule lies in the case of Schutter v. Wyeth Inc., 2011 U.S. Dist. LEXIS (N.D. Ill, 2011). There, the court took the unusual measure of striking treating physician testimony that did not purport to have discovered the cause of plaintiff s breast cancer, but rather generally discussed the risk factors for breast cancer and whether hormone therapy was a risk factor or a potential cause of breast cancer. Id. at *9-10. Such testimony does not put forth a methodology for saying The Deposition of the Treating Physician: The Trial Lawyer s Perspective Yates 363

8 what is the cause of breast cancer nor does it necessarily rely on any experience beyond the general qualifications of a doctor who treats breast cancer. Given that no affirmative causation opinion was sought and there could be no surprise to plaintiffs at trial regarding the testimony this physician may provide at trial, the court s decision creates further issues for defendants to consider in how a trial team will be able to use any potentially useful testimony that rebuts plaintiff s causation story. The Schutter court dismisses this important distinction by holding that, [r]egardless of whether causation is cast in the positive ( does X cause cancer ) or the negative ( does Y not cause cancer ), the result is the same: opinion testimony based on general medical knowledge regarding the reason [plaintiff] developed breast cancer. Id. at *12. As a result, a party could be foreclosed from introducing causation testimony by a doctor if it was based on knowledge gained outside of his capacity as the plaintiff s treating physician, unless he was designated as an expert under Rule 26(b)(2). Id. at *10. The clear tension here lies in what courts consider to be expert testimony with respect to the treating physician. While a defendant may or may not choose to offer an affirmative testimony that its product did not cause the plaintiff s injury, it is under no obligation to do so. It can prevail when the proximate cause of plaintiff s condition remains unknown and unproved. Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 404 (1985). Nor is it defendant s burden to provide an alternate explanation. After all, it is the plaintiff who must prove through the use of expert testimony, that to a reasonable degree of medical probability that exposure to a substance was a but-for cause of the injury. Wilcox v. Homestake Mining Co., 619 F.3d 1165, 1169 (10th Cir. N.M. 2010). As discussed in the case law above, under former Rule 26, no expert disclosure of treating physician testimony related to the doctor s general care and treatment of plaintiff was necessary. However, Rule 26(a)(2) (C) now requires information on (i) the subject matter on which the witness is expected to present evidence under Federal Rules of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. See FRCP 26(a)(2)(C). While this disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B), it is a measure that was previously not required. The first measure towards admissibility starts with the treating physician deposition. As favorable testimony is obtained from plaintiff s treating physicians, every measure must be undertaken to establish that the opinions are part of what the physician does in his or her ordinary practice and the evidence was related to the particular plaintiff in this case. Still, more is required. The treating physician must be disclosed as a nonretained expert consistent with the changes in Rule 26. Conversely, attorneys must also be prepared to challenge any unfavorable treating physician testimony. The discovery attorneys should be armed with the admissibility standards set forth under Daubert for both reliability and applicability to plaintiff s case. Additionally, the disclosure requirements of Rule 26 provide another tool for excluding such testimony. IV. Conclusion As evidenced above, the treating physician deposition is potentially one of the lynchpins of any causation defense. Historically, obstacles such as the inability to communicate with plaintiff s physicians have left defendants vulnerable to surprise opinions outside the scope of the factual information available in the plaintiff s medical records, thus necessitating a rule where those expert opinions are disclosed prior the witness s trial testimony. However, while Rule 26 addressed this potential for problematic testimony, it has also introduced the new possibility that opinions which are of no surprise to either side are excluded on the basis of a technicality. This new hurdle is one which attorneys must be acutely aware of during the discovery period so that the objectives of the trial lawyer are adequately met later in the process. 364 Drug and Medical Device Seminar May 2012

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