Treating Physicians Can Be Retained as Experts in Similar Litigation in New Jersey

In In Re Pelvic Mesh/Gynecare Litigation, several hundred plaintiffs filed suit individually inNew Jersey against Johnson & Johnson and Ethicon, Inc. for injuries allegedly caused by the pelvic mesh devices J&J manufactured and sold. In retaining expert witnesses, the defendants proposed a set of protective measures to ensure that counsel would not utilize physicians as experts in those cases brought by their respective patients. Nevertheless, theAtlanticCounty trial court assigned to jointly manage the litigation entered an order barring the defendants from consulting with or retaining physicians who had at any time treated any of the plaintiffs even for those cases involving a different plaintiff. In so ordering, the Law Division held that allowing physicians to render an opinion on the litigation would impinge upon the doctor-patient relationship and be harmful to the plaintiffs’ “litigation interests.”

The defendants sought leave to appeal and the Appellate Division reversed, noting a distinction between the plaintiffs’ “litigation interests” and “medical interests.” The court explained that a physician’s duty to a patient is not defined by the substantive position she may take on litigation, but rather the treatment she provides. Moreover, such a sweeping restriction would unfairly disadvantage the defendants by denying them access to the best-qualified experts in the field. For example, as of the date of the appeal, there were nearly 450 plaintiffs and about 1,300 treating physicians, potentially conflicting many highly qualified experts from J&J’s retention.  Instead, Appellate Division reversed and found that the defendants’ protective measures struck an adequate balance between the parties’ interest in allowing the retention of physician-experts and safeguarding plaintiff’s privacy rights.

Thanks to law clerk Adam Gomez for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com