MDL Judge in Xeralto Denies Motion to Limit Ex Parte Communications with Treating Physicians

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In the Multi-District Litigation pending in the Eastern District of Louisiana regarding the drug, Xeralto, Judge Fallon recently issued an order addressing two separate motions brought by the defendants: (i) a motion to limit ex parte communications between plaintiffs’ counsel and the plaintiff’s prescribing and/or treating physicians, and (ii) a motion to permit the defendants to hire experts who may have prescribed Xeralto to their patients, (some of whom may be or may hereinafter become plaintiffs).

First, Defendants argue that ex parte contacts between Plaintiffs’ counsel and prescribing or treating physicians “should be limited to discussion of the plaintiff’s diagnosis and treatment, because unscrupulous counsel will take the opportunity to influence the physicians’ testimony on liability issues….

“The Court finds that imposing restrictions on the substantive content of ex parte contacts between Plaintiffs’ counsel and prescribing or treating physicians would be both unenforceable and unreasonable.  Further, the Defendants’ proposed compromise measure of allowing ex parte discussion of liability theories places an undue burden on the physician-patient relationship….

“Defendants take the position that ex parte discussions between Plaintiffs’ counsel and prescribing or treating physicians should be sanitized from all advocacy concerning liability.  But this is easier said than done—advocacy is in the eye of the beholder.  The Court lacks the ability to surgically remove delicate insinuations from the individual sentences of Plaintiffs’ counsel.  The ability to subtly persuade is a core characteristic of the effective advocate.  As foreshadowed in the Aeneid by Virgil (a deft moralizer in his own right), a Trojan horse appears to be just a horse until the Achaeans emerge within the gates.  Simply put, the Defendants’ request to cleanse advocacy from Plaintiffs’ ex parte physician contacts may not be easily detectable and is not enforceable, and this Court will not issue a pretrial order which is impossible to police….

“The Defendants’ request also places an unreasonable burden on Plaintiffs’ counsel.  The subject of this MDL, Xarelto, has produced both state and federal cases that are presided over by judges with different views on the scope of discovery.  The dual nature of this litigation therefore raises ethical complications for ex parte contact with such physicians, because an attorney may be beholden to the rules of both state and federal courts.  Defendants argue that Plaintiffs’ counsel should follow a federal MDL transferee court’s limitations on ex parte discussion of liability theories, even when conducting interviews concerning state court cases subject to state privilege law and overseen by state court judges.  While deference to the federal forum is appreciated, counsel who fail to pursue liability theories in ex parte interviews concerning state court cases where it is allowed under state procedure may subject themselves to a claim of malpractice.  The Court finds it unrealistic to expect a state court lawyer to follow an MDL transferee court’s instructions when the MDL court lacks jurisdiction, especially when doing so may subject the lawyer to liability. Therefore, the Defendants’ request is unreasonable as well as unenforceable.

“Furthermore, physicians are learned professionals who have devoted themselves to the sciences.  These individuals cannot be analogized to the cowed, reprimanded children referenced in the ‘woodshed’ idiom.  And to suggest that highly trained physicians would be unduly influenced by the comments of Plaintiffs’ counsel fails to account for the healthy skepticism which exists between the members of these professions.  The Court cannot conclude based on Defendants’ sparse anecdotal evidence that physicians are a vulnerable or dishonest population.  Assuming otherwise would disserve the medical profession.

“Defendant’s proposed compromise, allowing both parties to engage in ex parte contact concerning liability theories, places an undue burden on the physician-patient relationship.  While it is clearly difficult for Plaintiffs to discuss treatment and care without discussing issues of causation and liability, the Court finds that it would be even more difficult for Defendants to surgically separate discussion of liability from a physician’s understanding of his treatment of individual patients….”

With respect to the second motion, the court was asked “to balance the due process concerns raised by the inability to present effective expert testimony, and a patient’s right to safeguard both private medical information and the trusting character of the physician/patient relationship.  In essence, accessibility and fairness must be balanced against the potential for misuse and manipulation….

“In an effort to balance these competing interests, the Court finds that Defendants may engage in ex parte contacts for the purpose of obtaining physician-experts, but the physician may not serve as an expert in a trial involving his or her patient, or discuss the diagnosis or treatment of any patient currently or formerly in his or her care who has taken Xarelto.  Additionally, the physician may not serve as a physician-expert until he or she has disclosed the proposed arrangement with Defendants to all of his or her current patients who have taken or are taking Xarelto.  This limitation will hopefully protect the values of trust, candor, and honesty which are at the heart of the physician-patient relationship.  Patients must be candid and forthright if they hope to be accurately diagnosed, and physician-experts must do the same if they hope to be trusted.”

See Order and Reasons, In re: Xeralto Products Liability Litigation, MDL No. 2592 (E.D.La. March 9, 2016) [Civ. Action No. 2:14-md-02592, Rec. Doc. 2676].

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