However, parts of New Jersey have become “judicial hellholes,” and in some mass torts, New Jersey trial courts have systematically ignored Stempler, and refused to allow informal interviews at all. E.g., Smith v. American Home Products Corp., 855 A.2d 608, 625 (N.J. Super. 2003).Well, if anything that was an understatement – and it’s only gotten worse.
To put things in context, first let’s review Stempler. It was a medmal, wrongful death case. A dispute arose over the language of some authorizations for release of information by the plaintiff’s (technically, the plaintiff’s decedent, since it was a death case) treating doctors. The defendant doctor’s counsel wanted informal interviews, but the plaintiff’s counsel crossed out that language and inserted other language that prohibited such interviews. The trial court granted the defendant’s motion to compel the interviews. After that, the New Jersey intermediate appellate court didn’t accept the interlocutory (for you non-lawyers, that means a request to appeal a non-final order that’s not otherwise appealable), but the New Jersey Supreme Court did. See generally Stempler, 495 A.2d at 858.
Despite being in a pro-plaintiff phase in any number of other ways (medical monitoring, expert witnesses, consumer fraud, DTC exception, you name it) the New Jersey Supreme Court unanimously affirmed the right of defendants in personal injury cases to seek informal interviews with doctors who had treated the plaintiff, if such treaters were willing, and as long as notification was provided to opposing counsel. See 495 A.2d at 864-65.
The court in Stempler first disposed of any argument that the physician/patient privilege precluded informal defense interviews. That privilege was “of relatively recent statutory origin,” and “major factors. . .argue[d] against a broad application.” Id. at 860. Stempler approved informal interviews (with notice) as an equitable compromise among the competing interests of all sides:
The defense interest (1) not to “be restricted to the formality, expense, and inconvenience of depositions” in seeking relevant evidence, and (2) in seeking out “testimony that would be helpful to the defendant at trial” outside the presence of opposing counsel. 495 A.2d at 863-64.
The plaintiff’s interest (1) “to protect from disclosure by the physician confidential information not relevant to the litigation” and (2) “to preserve the physician’s loyalty to the plaintiff” so that the treater “will not voluntarily provide evidence or testimony that will assist the defendant's cause.” Id. at 864.
The treating doctor’s interest in “prevention of inadvertent disclosure of information still protected by the privilege, since an unauthorized disclosure of such information may be unethical and actionable.” Id.
The New Jersey Supreme Court expressly recognized that its rulings would apply to all personal injury litigation. “Although this litigation involves claims for wrongful death and medical malpractice, the same interests would be present in other types of personal injury litigation.” Id. at 863.
The court then held that litigants were not limited to forms of discovery specifically provided by the rules of procedure, and that there was nothing wrong – and a lot right – with informal interviews as a means of gathering information:
The Rules regulating pretrial discovery do not purport to set forth the only methods by which information pertinent to the litigation may be obtained. Personal interviews, although not expressly referred to in our Rules, are an accepted, informal method of assembling facts and documents in preparation for trial. Their use should be encouraged as should other informal means of discovery that reduce the cost and time of trial preparation.Stempler, 495 A.2d at 864.
Plaintiff consent to informal interviews could properly be compelled because “it is unrealistic to anticipate that decedent's physicians will participate in such interviews without plaintiff's consent.” Id. Conversely, plaintiffs had a right to know that defense counsel were conducting such interviews:
[C]onditions should be imposed in the authorizations, or in orders compelling their issuance, that require defendant's counsel to provide plaintiff’s counsel with reasonable notice of the time and place of the proposed interviews. Additionally, the authorizations or orders should require that defendant’s counsel provide the physician with a description of the anticipated scope of the interview, and communicate with unmistakable clarity the fact that the physician's participation in an ex parte interview is voluntary.Id.
However, the New Jersey Supreme Court made clear in closing that allowance of informal physician interviews was to be the rule, and restrictive conditions only an “extreme” exception requiring affirmative proof of “substantial prejudice”:
Plaintiff may also seek and obtain a protective order if under the circumstances a proposed ex parte interview with a specific physician threatens to cause such substantial prejudice to plaintiff as to warrant the supervision of the trial court. Such supervision could take the form of an order requiring the presence of plaintiff's counsel during the interview or, in extreme cases, requiring defendant's counsel to proceed by deposition. We are satisfied that the flexibility afforded by our decision will permit trial courts and counsel to fashion appropriate procedures in unusual cases without interfering unnecessarily with the use of personal interviews in routine cases.Stempler, 495 A.2d at 864-65 (emphasis added).
In recent years, however, a number of the trial judges coordinating mass torts in New Jersey have in practice ignored Stempler and its requirements. Instead, with one exception that we know of, they have globally prohibited informal interviews without requiring plaintiffs to make any specific showing of “substantial prejudice” and even in the face of evidence that plaintiffs have abused their exclusive access to treating physicians – as predictably they have done (see our prior posts here and here, mentioning some of these abusive tactics).
This creeping trial court usurpation of the unanimous Stempler decision began with Smith v. American Home Products Corp. Wyeth-Ayerst Pharmaceutical, 855 A.2d 608 (N.J. Super. L.D. 2003). Most of the Smith opinion consisted of debunking the ludicrous (but surprisingly widely adopted) argument that HIPAA somehow preempts state court litigation practices when, in fact, HIPAA expressly excludes litigation from its purview (for more on HIPAA preemption see here and here). But at the end, rather than do what Stempler required and allow the defendants to proceed with Stempler-authorized interviews, the court made a blanket determination – without taking evidence of any "substantial prejudice" to plaintiffs – that all 300 cases in that mass tort (it involved PPA) constituted “extreme” cases:
Since there are approximately 300 PPA cases on this court’s docket and only one and a half months until trial, it would be improvident to cease discovery to hold extensive hearings [on conditions for informal interviews]. Therefore, this court determines that the PPA cases are “extreme cases” and orders defendants to proceed directly to deposition of treating physicians and/or those “covered entities” as defined in HIPAA.
Were this a new mass tort, this court could alter the old discovery process, for example, hold hearings regarding the “related” medical disciplines necessary and provide the appropriate “qualified protective order”. . . . Nevertheless, for the balance of this mass tort case, defendants will follow formal discovery rules. While this may cause some retooling, it is not in anyway prejudicial.Smith, 855 A.2d at 625.
So much for Stempler’s expressed preference for flexibility. Nothing in Stempler suggests that there were to be restrictions on a defendant’s right to informal interviews except on a specific consideration of the circumstances of a particular case. But at least, in Smith, the court had the fig leaf of there being only six weeks until “trial” – although we strongly doubt that all 300 cases in that litigation were actually listed for trial.
Then, along came In re Diet Drug Litigation, 895 A.2d 493 (N.J. Super. L.D. 2005) ("Diet Drug I"). After again finding that HIPAA didn't preempt the Stempler procedure, the court’s reasoning gets rather bizarre. Despite having just ruled that there’s no HIPAA preemption, id. at 501-02, the court goes on to restrict the defendant’s Stempler rights in part to “help to insure HIPAA compliance.” 895 A.2d at 505. And the court – in a sweeping statement based on nothing more than its own predilections – held that “that mass tort cases are ‘extreme’ cases, requiring special management.” Id.
In Diet Drug I, there was also a trial deadline issue, as in Smith – the thirteen cases were set for trial little more than a month. Given Smith, it seems unwise for the defendant to have waited as long as it did to raise the Stempler issue. However, it largely got away with that, since it was allowed to take the requested informal interviews, provided that they were recorded:
[T]he court will permit Wyeth to conduct ex parte interviews with plaintiffs’ treating physicians subject to Stempler’s constraints, but any interview must be recorded and transcribed. A copy of that transcript will be made available to plaintiffs’ counsel at the time of each physician's deposition. Plaintiffs will sign the Authorization, permitting such interviews. After signing this release, the plaintiffs and their attorneys are directed to take no steps designed to interfere or discourage the physician's participation.Diet Drug I, 895 A.2d at 504-05. The court found that informal interviewers with treaters were particularly justified since the defendant was subject (wrongly, we would argue, but that’s another issue) to a heeding presumption that required them to obtain affirmative evidence of how treaters reacted to its product warnings. Id. at 505-06 (defendant “should be given appropriate formal and informal discovery tools to seek to accomplish its litigation tasks”).
Even these fig leaves have since been tossed out the window. The trial courts' movement to ignore Stempler in mass torts resumed in earnest in In re Vioxx Litigation, slip op. (N.J. Super. L.D. Nov. 17, 2004). HIPAA preemption was once again rejected, but none of the pretexts that had existed in Smith or Diet Drug I were present in Vioxx. There was no trial date. It was a new mass tort, not one that had proceeded for years under different rules. The only excuse was that the court was general administrative hassle – without ever trying to find out if, in practice, such hassle existed:
A proper scope for each interview must be determined. . . . The decision must be based upon the difficulty in managing such informal discovery methods in hundreds of cases at once, and not upon whether such interviews are preempted. . . . Stempler interviews were designed to allow a simpler, cheaper, more efficient and informal means of discovery than depositions. None of these will be achieved by ex parte interviews in this case. Counsel in oral argument acknowledged that some treating doctors even require their own lawyers at these interviews. Both counsel agreed maybe doctors needed to be advised of their own possible liability. . . . Trial courts were given discretion to forbid Stempler interviews in “extreme cases.” Vioxx cases are not the basic personal injury case. The court orders that the defendants proceed with depositions of doctors in lieu of Stempler interviews.Slip op. at 8. (Note, Vioxx also relies on something said at a case management conference in a Diet Drug case called Bonanno, but if there were ever a written order, it’s nowhere to be found online in the New Jersey mass torts Diet Drug database).
These excuses are so weak that they don’t even qualify for “fig leaf” status, because
- There’s no scope problem. Drug mass torts are pattern litigation. The scope of an authorization/informal interview will be essentially the same in every case: (1) treatment involving the use of the drug in question; (2) the prescriber’s general knowledge/experience with the drug in question; (3) treatment of whatever injuries the plaintiff alleges in the complaint; and (4) any litigation-related contacts with plaintiff or plaintiff’s counsel.
- Stempler interviews are voluntary. If they’re too much bother or expense for the doctors, they can refuse outright.
- Stempler presumes that informal interviews will be the norm, and restrictions the exception – based upon specific circumstances.
- "Extreme" has got to mean more than simply "not the basic" case.
- Personal injury plaintiffs are allowed to deprive defendants of their Stempler right to informal interviews simply by virtue of mass tort consolidation.
In mass tort dockets, the alleged efficiency of allowing Stempler interviews does not outweigh the impracticality of doing so. The Court does not have unlimited resources nor unlimited time. To permit these interviews opens a “Pandora’s Box.” Litigation over the litany of potential problems. . .will severely limit the Court’s ability to move these cases to trial. . . . Possible conflict of law between New Jersey and the various states of the plaintiffs’ physicians provides yet another reason that Stempler are inappropriate.Diet Drug II, slip op. at 5.
With all due respect, who gave New Jersey trial judges the power to overrule the unanimous New Jersey Supreme Court? The determination of whether, on balance, informal interviews are a good idea was done in Stempler. It is not for any trial judge to rule that a right expressly recognized as efficient by that state’s supreme court, in fact, isn’t.
The conflict of law point is hokum as well. First, purely procedural issues such as the manner of discovery are always governed by the law of the forum court, whose rules of procedure apply to the case – out-of-state plaintiffs having consented to application of the forum’s procedural rules by voluntarily filing their cases there. Second, inconsistently with its expressed concern for choice of law, the blanket order denies all informal interviews, even as to plaintiffs residing in states (such as California, Texas, and New York (the three biggest states) that generally allow informal interviews, see 50-state survey).
Then there was Gaus v. Novartis Pharmaceuticals Corp., slip op. (N.J. Super. L.D. Oct. 29, 2009), which extended judicial nullification of Stemple to Aredia/Zometa cases. As in Diet Drug II, the trial court in Gaus recalibrated the balance that the unanimous New Jersey Supreme Court had already struck in Stempler and denied any and all informal interviews, using the same excuses already discussed above in connection with the Diet Drug II and Vioxx opinions. Slip op. at 17-18.
Interestingly though (as previously discussed here), Gaus sought to level the playing field by holding the plaintiffs to the same restrictions on informal contacts imposed upon the defendants.:
[N]o party – Plaintiffs nor Defendants – shall engage in ex parte contacts with Plaintiffs’ treating physicians or influence the deposition or trial testimony of Plaintiffs’ treating physicians. To hold otherwise would facilitate the potential for either counsel to influence Plaintiffs’ treating physicians. To ensure that all parties have the same right of access to all nonparty fact witnesses, this court shall prohibit the parties from engaging in ex parte contacts with Plaintiffs' treating physicians.Gaus, slip op. at 18.
The New Jersey trial courts’ unwarranted ousting of Stempler from the mass tort arena continues apace. Just recently, the court in In re Accutane Litigation, slip op. (N.J. Super. L.D. July 1, 2010), refused to revoke another blanket no-Stempler order – despite being presented with evidence that the plaintiffs had been abusing their exclusive right to talk ex parte with treating physicians by:
- Secretly biasing doctors with anti-product – but, of course, not pro-product – medical literature;
- Secretly biasing doctors with anti-product – but, of course, not pro-product – personal opinions on causation; and
- Secretly biasing doctors with anti-product – but, of course, not pro-product – personal opinions about the defendants’ warnings.
Stempler is distinguishable from this Accutane litigation and such interviews are inappropriate for this type of mass tort. The purpose of Stempler was to take a simple personal injury case and allow the doctor to be interviewed without a formal deposition. That reasoning cannot apply with this type of mass tort litigation.Accutane, slip op. at 10. As discussed at length above, nothing in Stempler itself supports this dismissive view. Instead, Stempler quite consciously balanced the interests of defendants, plaintiffs, and treating doctors in all personal injury litigation in determining that the general rule would be to allow informal debositions. Nor was there any suggestion in Stempler that informally interviewed treaters would not later be deposed.
Far from balancing the interests of defendants against those of plaintiffs – as Stempler had done – the Accutane decision refused to recognize any legitimate defense interest at all. Rather, plaintiffs were free to talk to treaters informally after litigation because defendants, supposedly, did so prior to litigation. According to that case:
[T]here is no lack of fundamental fairness because defendants cannot present their side to the treating doctors. The defendant manufacturers have a duty to communicate risks and benefits to the doctor before the drug was prescribed. Defendants, through their sales representatives and marketing departments, have repeatedly had “ex parte” conversations with the doctors about the drug. . . . To now claim it is fundamentally unfair to allow plaintiffs counsel to communicate ex parte with the physicians ignores the fact that defendant has been communicating with the doctor since the drug was placed on the market.Accutane, slip op. at 11-12.
We think that’s comparing apples and … not oranges, it’s worse than that … apples and bricks, perhaps, or maybe corkscrews. Manufacturers are never able to discuss specific patients’ treatment prior to litigation the way that informal interviews do afterwards. That’s where HIPAA kicks in, for one thing. The whole purpose of HIPAA is to prevent general disclosure of patient-specific medical information. For another thing, there’s nothing informal about drug warnings – they’re in writing, FDA-approved, and publicly available to anybody.
But even if the analogy in Accutane weren’t screwy, it’s improper for a trial court to draw it. The balance of interests as to informal interviews was made by the New Jersey Supreme Court in Stempler, and it’s improper for a mere trial court – any trial court – to stick its thumb on the scale once the Supreme Court has ruled.
We think the that trial courts administering the mass torts program in New Jersey have usurped the prerogatives of the New Jersey Supreme Court to approve informal interviews with treating physicians under the conditions laid down in Stempler. Now that those courts have taken to citing themselves while ignoring both the letter and spirit of Stempler itself, we think it’s highly unlikely that these same trial courts will right themselves on their own. The problem is that all of these trial court opinions are interlocutory, non-appealable orders (as was Stempler).
There are, however, plenty of appealable orders generated by the various New Jersey mass torts. To rein in the trial courts, mass tort defendants in New Jersey litigation need to preserve the Stempler issue as ancillary to these other appeals and thus bring the matter of the appellate courts. Right now Stempler has been effectively nullified in pharmaceutical (and maybe other, we haven't checked) mass tort cases in New Jersey state court. It’s not doing us any good as it is, so there’s no downside in taking the issue up. The worst that could happen is that the New Jersey Supreme Court overrules Stempler – but that’s not much worse than the current state of affairs, where the trial courts have effectively taken it upon themselves to do the same thing.