The opinion of the court was delivered by: Hon. Rebecca R. Pallmeyer
This Document Relates to All Cases
Defendants Zimmer, Inc. and its affiliates ("Defendants" or "Zimmer") are manufacturers of the Zimmer NexGen knee implant devices that are the subject of this multidistrict litigation ("MDL"). In this motion, Defendants seek authority under certain conditions to contact prospective expert witnesses who also happen to be treating physicians for several Plaintiffs whose cases are consolidated in this MDL. As Defendants note, the size of this MDL is significant: it now comprises more than 530 individual actions, and Plaintiffs have suggested the number may rise to 1000. To date, Plaintiffs have identified 549 treating physicians, including at least a handful who are involved in the design of the implant devices at issue in this case. (Zimmer's Reply in Supp. of Its Mot. for an Order Concerning Zimmer's Contact With and Use of Treating Physicians as Defense Experts at 2 n.1.) If they are unable to contact any of these doctors, Defendants contend, their defense will be unfairly compromised.
Plaintiffs object to Defendants having any contact with treating physicians. Plaintiffs cite the law of several states, including Illinois, prohibiting ex parte communications between a defendant's counsel and a plaintiff's treating physician. Under these "ex parte rules," confidential information for which a plaintiff has waived the physician-patient privilege is available to the defendants only via formal methods of discovery. See, e.g., Petrillo v. Syntex Labs., Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1st Dist. 1986). Anticipating this objections, Defendants have drafted a Proposed Order to address the public policy concerns that motivate some states to implement blanket prohibitions against such communications. As ordered by MDL transferee courts in some other MDL cases, Defendants propose that their contact with Plaintiffs' treating physicians should be permitted, subject to an order limiting contact with prospective expert witnesses who are also treating physicians of individual plaintiffs as follows:
1. Zimmer's counsel will not communicate with physician-expert about any of his or her patients who are plaintiffs in this MDL.
2. Zimmer and its counsel may not use a physician as a consulting or testifying expert in a case where that physician's present or former patient is a plaintiff in that particular case.
3. Before having any substantive communication with a prospective physician-expert, Zimmer's counsel will provide the treating physician with this Order and will secure the treating physician's written acknowledgment that he or she has read the attached Memorandum to Physicians, except that [an] expert[ ] retained as of the date of this Order shall be provided with this Order within thirty (30) days, and shall provide written acknowledgment that he or she has read the attached Memorandum to Physicians.
(Defs.' Proposed Order Concerning Contact with Physicians.)
Following a June 21 hearing, Defendants filed a supplement to their motion, asking the court to stay its decision on Zimmer's contact with treating physicians in general in order to first address Zimmer's request for leave to contact six physicians Defendants believe are crucial to preparation of their defense. These six physicians, Zimmer explains, are surgeons with whom Zimmer contracted to assist in the development of the medical devices at issue in this case. (Supp. to Zimmer's Mot. for an Order Concerning Zimmer's Contact with Treating Physicians-Zimmer's Design Surgeons at 1-2.)*fn1 They are also the treating physicians for one or more individual Plaintiffs whose cases are consolidated in this MDL.
For the reasons explained below, the court grants Defendants' motion to permit contact with the six named physicians. Further, the court sees no reason for additional briefing on the larger issue of Defendants' contact with other treating physicians. The court grants Defendants' motion to allow contact with other treating physicians, as well, subject to the additional limitation, proposed by Defendants' counsel at oral argument, that Defendants contact no more than twenty-five prospective expert witnesses who are also treating physicians of Plaintiffs whose cases are consolidated in this MDL.
The court begins with the question of what law governs the matter of Defendants' contact with Plaintiffs' treating physicians. In its initial memorandum in support of its Motion for an Order Concerning Contact With Physicians, Defendants assert that federal procedural law governs a party's contact with witnesses. Plaintiffs respond that the court should apply Illinois law to this question. Defendants' reply maintains that if Plaintiffs are correct that state law governs, then this court must apply the forum state law for each of the 500 consolidated cases, using different rules for different sets of Plaintiffs.
Federal courts have not reached a consensus on this issue. Plaintiffs' suggestion that the court apply Illinois law to all cases in this MDL has arguably the least support. At least one federal court did apply the choice-of-law rules of the state in which the transferee court sits to all cases in that MDL. See In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069, 1078 (S.D. Ind. 2001). That court concluded that Indiana's choice-of-law rules applied because the plaintiffs had filed a master complaint in that forum, and the parties agreed that the court should be treated as the forum court. Id. In the absence of such consent, however, most MDL courts "treat consolidated complaints filed in multi-district litigation as a procedural device rather than a substantive pleading with the power to alter the choice of law rules applicable to the plaintiff's claims." In re Mercedes-Benz Tele Aid Contract Litig., 257 F.R.D. 46, 56 (D.N.J. 2009) (collecting cases).*fn2
The majority of courts that have addressed the issue of ex parte communications with a plaintiff's treating physician assume or conclude that federal courts must apply state ex parte rules under Federal Rule of Evidence 501. See, e.g., In re Aredia & Zometa Prods. Liab. Litig., No. 3:06-MD-1760, 2008 WL 8576167, at *1 (M.D. Tenn. Jan. 17, 2008); Benally v. United States, 216 F.R.D. 478, 480 (D. Ariz. 2003); McCauley v. Purdue Pharma, L.P., 224 F. Supp. 2d 1066, 1068-69 (W.D. Va. 2002); Neubeck v. Lundquist, 186 F.R.D. 249, 250-51 (D. Me. 1999); Doe v. City of Chicago, No. 96 C 5739, 1998 WL 386352, at *2 (N.D. Ill. July 7, 1998); Horner v. Rowan Cos., 153 F.R.D. 597, 601 (S.D. Tex. 1994); Gobuty v. Kavanagh, 141 F.R.D. 136, 138 (D. Minn. 1992). Rule 501 provides that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." FED. R. EVID. 501. One MDL transferee court granted the defendant permission to initiate ex parte communications with the plaintiffs' treating physicians, but interpreted Rule 501 to confine those communications to those physicians located in states without statutes or court decisions expressly prohibiting such communications. See In re Aredia & Zometa Prods. Liab. Litig., 2008 WL 8576167, at *1-2.*fn3
Several courts have reached the opposite conclusion, however, holding that while state law may govern privilege, federal procedural law still governs discovery practice. See, e.g., Patton v. Navartis Consumer Health, Inc., No. 4:02-CV-0047-DFH-WGH, 2005 WL 1799509, at *2 (S.D. Ind. July 25, 2005); Shots v. CSX Transp., Inc., 887 F. Supp. 206, 207-08 (S.D. Ind. 1995); Lake v. Steeves, 161 F.R.D. 441, 441-42 (D. Kan. 1994); Evertson v. Dalkon Shield Claimants Trust, Nos. 82-1021-MLB, 85-1644-MLB, 92-1409-MLB, 92-1417-MLB, 1993 WL 245972, at *1 (D. Kan. June 2, 1993); Filz v. Mayo Found., 136 F.R.D. 165, 175 (D. Minn. 1991); cf. In re Vioxx Prods. Liab. Litig., 230 F.R.D. 473, 475, 477 (E.D. La. 2005) (applying its own bar against ex parte communications regarding the plaintiffs' medical history to cases from all fifty states, but noting that the issue was a "discovery issue and not a substantive one").*fn4 These courts recognize that a state's law of privilege applies in diversity actions, but they conclude that a plaintiff waives the physician-patient privilege as to all matters relevant to the case by putting his or her medical condition at issue. Thus, state law banning ex parte communications between defense counsel and a plaintiff's treating physician merely governs the method of discovery, not the operation of the privilege. See Shots, 887 F. Supp. at 207 (concluding that Indiana's ban on ex parte communications "governs Indiana discovery procedure, but does not change the essential elements of the physician-patient privilege"); Evertson, 1993 WL 245972, at *1 ("The method for discovering unprivileged material-whether by written interrogatories, requests for admissions, deposition, or ex parte interviews-is entirely a matter of procedure governed by the Federal Rules of Civil Procedure."); Filz, 136 F.R.D. at 172 (siding with those courts that "have characterized ex parte interviews as a method of informal discovery rather than a conditional waiver of the physician-patient privilege").
These courts further conclude that while the Federal Rules of Civil Procedure do not explicitly provide for such informal discovery methods, the district court has discretion to allow such informal communications under federal procedural law. See Patton, 2005 WL 1799509, at *3 (citing Hickman v. Taylor, 329 U.S. 495 (1947) for the proposition that the right to conduct ex parte witness interviews "is taken for granted as a matter of federal procedure"); Shots, 887 F. Supp. at 207 ("Under the federal rules, district court judges are given wide discretion to supervise the discovery process, and their decisions are subject to review only for abuse of discretion.").
This court recognizes merit in the minority position. Broadly speaking, the law of privilege addresses which relationships and communications are privileged, who may assert the privilege, and how the privilege is waived. See MCCORMICK ON EVIDENCE §§ 98-105 (6th ed. 2006). A state ban on ex parte communications between the defendant and a plaintiff's treating physician does not fit squarely within this privilege analysis. Indeed, such a ban would presumably apply even in circumstances (arguably present here) where plaintiff has waived the physician-patient privilege by putting his or her medical condition at issue.
The ex parte rule shares certain public policy goals with the law of privilege, but the rule operates by imposing restrictions on the methods of discovery-traditionally a matter within the broad discretion of the district court. The Federal Rules of Civil Procedure do not directly address the matter of ex parte contacts at issue in this case, but those rules do empower the court to "regulate practice in any manner consistent with federal law, rules adopted under 29 U.S.C. §§ 2072 and 2075, and the district's local rules." FED. R. CIV. P. 83(b). Circumstances like this, where no Federal Rules directly address the issue, call upon the court to "follow the Rules of Decision Act, 28 U.S.C. § 1652, and make the 'relatively unguided Erie choice,'" to determine whether the state law prohibiting ex parte communications is a "rule of decision" that federal courts are obliged to apply. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1448 (2010) (Stevens, J., concurring in part and concurring in the judgment)(quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). The court considers whether application of state law would be "outcome-determinative" in light of the "twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws." Hanna, 380 U.S. at 468; see also Houben v. Telular Corp., 309 F.3d 1028, 1034 (7th Cir. 2002).
The ruling at issue cannot be understood as "outcome determinative." The ruling Defendants seek would permit defense counsel to initiate ex parte communications with prospective expert witnesses who happen to be treating physicians of a very small subset of Plaintiffs in this MDL. Such a ruling would govern discovery practice-thus, it "concerns merely the manner and the means by which a right to recover, as recognized by the State, is enforced," as opposed to a "matter of ...