U.S. District Court Orders Disclosure by Plaintiffs’ Counsel of Pre-deposition Contacts

In Illinois it is well-settled law that prohibits defendants and their lawyers from communicating with treating physicians without the consent of the patient. In this case, plaintiffs sued five pharmaceutical companies in federal court where it was claimed they were injured by testosterone-replacement products.

In this multidistrict litigation case, one of the defendants, AbbVie Inc. requested that the federal court trial judge bar attorneys on both sides from having pre-deposition contacts with treating physicians of plaintiffs.

In the opinion written by U.S. District Judge Mathew F. Kennelly, the court, following Illinois law, stated that either side’s counsel may interview a witness and prepare him or her for the deposition by previewing the questions that may be asked, reviewing relevant documents and so on. There is nothing at all improper about this.  Indeed, adequate witness preparation is a key of good trial (and deposition) preparation.  In short there is no prohibition of pre-deposition of pre-testimony contact between a lawyer and the ordinary fact witness.

The difference, however, is when there are communications between the defendant’s attorney and the plaintiff’s treating physician. In those cases, communicating with a plaintiff’s treating physician may jeopardize the confidential and fiduciary nature of the physician-patient relationship. Petrillo v. Syntex Labs, 148 Ill.App.3d 581 (1986).

AbbVie argued that plaintiffs’ counsel’s pre-deposition communications with prescribing and treating physicians should be strictly limited to the subjects of plaintiff’s treatment, medical records and conversations with their health-care providers. AbbVie contended that the court should bar plaintiffs’ counsel from communications with the physicians “regarding liability issues for or theories, product warnings, interactions with any defendant or its employees (including sales representatives), medical literature, the medical care, treatment decisions or opinions of other physicians not independently known by the physician and/or a part of the physician’s medical file, or any internal documents produced by any defendant in this litigation with any physician…”

The court was not persuaded by AbbVie’s contentions. The plaintiffs’ counsel had not asked the court to restrict AbbVie’s conduct at all beyond the restrictions that state law already imposes. The court declined to impose the restrictions that AbbVie sought.

“The defendants still are entitled to all of the medical records of the plaintiffs as well as the plaintiff’s fact sheet setting forth each plaintiff’s detail medical history.  The defendants can also continue to exercise their right to depose the plaintiffs’ treating physicians or confer with them in the presence of plaintiff’s counsel.”  In re Vioxx Products Liability Litigation, 230 F.R.D. 473 (E.D.Aa. 2005).

In conclusion, the plaintiffs’ counsel will be required to document the following regarding any pre-deposition communications they have with the treating physicians, other than communications that involve obtaining production of the physician’s records or scheduling of the physician’s deposition:  the date of the communication, its means (in person, by telephone, by e-mail, etc.), its approximate duration, the participants and the identity of any documents or electronically stored information (as that term is used in Federal Rule of Civil Procedure 34) shown, provided and described to the physician in connection with the communication. This information must be produced in full to defense counsel no less than 48 hours prior to the start of the physician’s deposition.

The court stated that disclosure of the plaintiff’s counsel’s pre-deposition contacts, combined with the opportunity to cross-examine, is sufficient to allow appropriate determination of the weight to be given to a physician’s testimony.

In re Testosterone Replacement Therapy Products Liability Litigation, No. 14 C 1748 (U.S. District Court for the Northern District of Illinois, March 7, 2016).

Kreisman Law Offices has been handling pharmaceutical product liability cases, dietary supplement cases, toxic tort cases and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Schiller Park, Bensenville, University Park, Lansing, Lemont, South Barrington, Chicago  Heights, Gurnee, Midlothian and Calumet City, Ill.

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