In Re Pelvic mesh/gynecare Lit.
426 N.J. Super. 167
N.J. Super. Ct. App. Div.2012Background
- Multiple-state plaintiffs sue Johnson & Johnson and Ethicon over pelvic mesh devices (Gynecare/Gynemesh Prolift, TVT) implanted for prolapse/incontinence.
- FDA Public Health Notification (Oct. 2008) warned of serious complications from transvaginal mesh placement.
- Defendants retained as consultants Dr. Halina Zyczynski (late 2008) and Dr. Elizabeth Kavaler (Mar. 2009); later disclosures revealed past treatments relevant to plaintiffs.
- September 2010 discovery revealed a possibly related consult with a treating physician not identified in initial disclosures; defendants disclosed their consultation history.
- January 2011 motion to adopt a federal-like protocol for treating-physician experts was opposed by plaintiffs seeking blanket disqualification of any physician who treated any plaintiff.
- Trial court (May 26, 2011) barred defendants from consulting with or retaining any physician who had treated any plaintiff, disqualifying ~1,300 physicians as the litigation expanded to 220+ plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May treating physicians be categorically barred as defense experts in a mass-tort? | Pelvic Mesh plaintiffs argue yes; extensive coordination justifies broad disqualification. | Defendants contend broad disqualification is necessary to protect litigation integrity and prevent conflicts. | No; blanket disqualification is overbroad and prejudicial; allow individualized protective measures. |
| Does physician-patient privilege bar defense use of treating physicians as experts for other plaintiffs? | Stempler and related cases permit access to treating physicians for defense purposes. | Privilege and confidentiality concerns justify limiting treating-physician access. | Privilege does not categorically bar defense access to treating physicians for other plaintiffs; protective protocols suffice. |
| Is there a duty of loyalty or 'litigation interest' that forbids treating physicians from aiding defense? | Physicians owe loyalty to patients; aiding defense would undermine patient trust. | No broad duty of loyalty; physicians may testify against former patients based on professional judgment. | No rigid duty of loyalty; physicians may assist the defense where appropriate with safeguards. |
| What is the proper scope of the court's inherent authority to manage experts in multi-plaintiff litigation? | Mass-tort coordination requires flexibility; broad restrictions hinder defense access to qualified experts. | Courts may impose limits to prevent prejudice; access must be balanced with patient protections. | Judicial management must be narrower and tailored; disqualification order should be revised/remanded. |
Key Cases Cited
- Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (N.J. 1995) (physician-patient privilege; treating physicians may testify as fact witnesses and discuss diagnoses/treatment)
- Stempler v. Speidell, 100 N.J. 368 (N.J. 1985) (ex parte interviews with treating physicians allowed with safeguards; protecting privilege)
- Graham v. Gielchinsky, 126 N.J. 361 (N.J. 1991) (exceptional circumstances standard; limits on using expert initially consulted by adversary)
- Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (N.J. 2006) (identification waives privilege; admissibility of expert testimony from identified adversary's expert)
- Carchidi v. Iavicoli, 412 N.J. Super. 374 (N.J. Super. Ct. App. Div. 2010) (defense access to treating physicians; balancing interests in mass torts)