Williams et al v. Smith & Nephew Inc.

Filing 444

MEMORANDUM Signed by Judge Catherine C. Blake on 4/27/2020. Associated Cases: 1:17-md-02775-CCB et al.(cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re: Smith & Nephew
Birmingham Hip Resurfacing
(BHR) Hip Implant Products
Liability Litigation

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MDL No. 2775
Master Docket No. 1:17-md-2775
Judge Catherine C. Blake
THIS DOCUMENT RELATES
TO ALL ACTIONS

MEMORANDUM
Now pending is Smith & Nephew’s motion for an amended order governing ex parte
contacts with surgeons and treating physicians. (ECF 2066). For the reasons stated below, the
motion will be granted in part, as to the request that plaintiffs’ counsel notify the treating
physicians that Smith & Nephew is not permitted to meet with them prior to the deposition, and
otherwise will be denied.
FACTS/PROCEDURAL HISTORY
Smith & Nephew previously filed a motion in May 2018 requesting that the court issue a
protective order regarding ex parte contacts with the plaintiffs’ treating physicians. In its June
20, 2018, order, the court declined to limit the plaintiffs’ counsel’s ex parte contacts with the
physicians to non-liability issues, but ordered that the plaintiffs disclose to Smith & Nephew the
date, duration, participants, and documents provided in any ex parte contact with a treating
physician. (ECF 798; ECF 801 (Amended Order)). The court also imposed restrictions on
Smith & Nephew’s ex parte contacts with treating physicians for the purposes of retaining them
as expert witnesses.
Smith & Nephew now moves for an amended order based on information it has learned
about the plaintiffs’ ex parte conversations with the first three treating physicians (Dr. Jack
Wayne Bowling, Dr. Henry R. Boucher, and Dr. David Martin) to be deposed. It argues that,

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according to the plaintiffs’ disclosures and testimony during depositions, plaintiffs’ counsel spent
the large majority of their ex parte conversations with these physicians on topics relating to
liability (specifically, on whether the physician’s treatment would have been different if he knew
of information that Smith & Nephew allegedly withheld), instead of topics relating to the
treatment of the individual plaintiff. Smith & Nephew argues that this biases or is intended to
bias the physicians against Smith & Nephew, and is especially problematic when the plaintiffs
question the physicians first in depositions, as many hours of questioning pass before Smith &
Nephew can present the other side of the story.1 Smith & Nephew requests that the court 1) limit
the scope of the ex parte conversations to “reviewing the Plaintiff’s own medical records and
discussing the doctor’s care and treatment of the Plaintiff”; 2) alternatively, allow Smith &
Nephew to meet ex parte with the physicians to discuss liability issues, or at least to question
treating physicians first at depositions; and 3) require plaintiffs’ counsel to notify each physician
it meets with ex parte that Smith & Nephew is precluded from meeting with them or showing
them documents prior to the deposition.
The plaintiffs respond that they have not acted inappropriately. They point out that
nothing prohibits them from asking questions regarding information Smith & Nephew allegedly
withheld from the physicians, and that this is relevant to specific causation.
DISCUSSION
Federal Rule of Civil Procedure 26(c)(1) provides that a “court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]” “Rule 26(c) confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection is required.” Seattle Times Co. v.

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To the extent they have not, the court reiterates that the parties must comply with the protective order (ECF 88)
when supplying confidential documents to the treating physicians.

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Rhinehart, 467 U.S. 20, 36 (1984); see also Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co.,
748 F.3d 160, 172–73, 178 (4th Cir. 2014) (a district court has “considerable discretion in
overseeing discovery”).
Smith & Nephew has not provided sufficient justification for the court to issue an
amended order. Smith & Nephew states that the plaintiffs’ counsel, in ex parte contacts, showed
documents to the three treating physicians that the plaintiffs contend Smith & Nephew withheld;
asked the doctors if these documents would have affected their treatment decisions; and asked
similar questions during the ex parte conversations as were later asked during depositions. But
Smith & Nephew presents no evidence that these three physicians were actually biased against
Smith & Nephew, or that the plaintiffs’ counsel coached or influenced their testimony. See In
re: Benicar (Olmesartan) Prod. Liab. Litig., No. 15-2606 (RBK/JS), 2016 WL 1370998, at *3
(D.N.J. Apr. 6, 2016) (defendants did not show good cause for protective order when they
presented no credible evidence that the plaintiffs’ counsel would improperly influence treating
physicians in ex parte contacts).
In fact, deposition testimony indicates that, contrary to Smith & Nephew’s concern, the
treating physicians were not biased or swayed by the ex parte conversations. Dr. Bowling
testified that he understood that the documents showed to him by plaintiffs’ counsel ex parte
were helpful to the plaintiffs’ case, and would not be surprised that Smith & Nephew would have
shown documents helpful to its case, as there are two sides to every story. (ECF 2066-4 at 11–
12, Jack Bowling Depo. at 165:25–166:13). And Dr. Boucher testified that, although he would
consider company emails when making treatment decisions, he would consider all sources of
information and “certainly wouldn’t rely on just one.” (ECF 2070-7 at 11, Henry Boucher Depo.
at 35:5–24).

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The court understands Smith & Nephew’s concern that it is unfairly prejudiced by
plaintiffs’ counsel’s ex parte contacts with treating physicians. See In re Chantix (Varenicline)
Prod. Liab. Litig., No. 2:09-CV-2039-IPJ, 2011 WL 9995561, at *3 (N.D. Ala. June 30, 2011).
The court, however, believes that the current procedures (the plaintiffs’ disclosures, as well as
the ability of Smith & Nephew to ask about the ex parte conversations during depositions)
properly balances, on one hand, the possible unfairness to Smith & Nephew and, on the other,
the physician-patient relationship, a party’s general ability to get informal discovery from fact
witnesses, and the difficulty of policing ex parte conversations with treating physicians. In re
Testosterone Replacement Therapy Prod. Liab. Litig., 167 F. Supp. 3d 936, 937–38 (N.D. Ill.
2016) (there are typically no restrictions on a party’s access to fact witness, and “even though
some states restrict defense-to-physician communications, the Court is unaware of . . . any such
state that . . . impos[es] [] a parallel prohibition (or some other form of restriction) on the
plaintiff's attorney”); In re Xarelto (Rivaroxaban) Prod. Liab. Litig., No. MDL 2592, 2016 WL
915288, at *5–6 (E.D. La. Mar. 9, 2016) (“Defendants' request to cleanse advocacy from
Plaintiffs' ex parte physician contacts may not be easily detectable and is not enforceable,” and
noting that cross-examination can help to mitigate the defendants’ concerns).
Smith & Nephew argues that two U.S. district courts have granted similar motions, citing
to D.M. v. Wesley Med. Ctr. LLC, No. 18-2158-KHV-KGG, 2018 WL 6696561 (D. Kan. Dec.
20, 2018) and In re Zimmer M/L, No. 18-md-2859, 2019 WL 6998493 (S.D.N.Y. Dec. 19, 2019).
Both of these cases regard defense counsel’s ex parte contacts with the plaintiffs’ treating
physicians, and appear to be relevant to Smith & Nephew’s request that, in the alternative, it be
allowed ex parte contacts with treating physicians regarding liability issues. D.M., however, was
not an MDL and allowed such contacts based on that district’s “well-established practice of

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issuing an order allowing [defense counsel to engage in] ex parte communications with treating
physicians,” D.M., 2018 WL 6696561, at *4. In contrast, there appears to be no such “wellestablished practice” among federal courts generally. And In re Zimmer held that courts must
apply state ex parte rules under Federal Rules of Evidence 501. In re Zimmer, 2019 WL
6998493, at *1. But while there is some disagreement in federal courts as to what law governs
defense counsel’s ex parte conversations with treating physicians, both parties seem to agree that
the court should apply federal procedural law here, as “federal procedural law [] governs
discovery practice.” In re Zimmer NexGen Knee Implant Prod. Liab. Litig., 890 F. Supp. 2d 896,
902 (N.D. Ill. 2012).2 To the extent that Smith & Nephew seeks to have ex parte conversations
with treating physicians to discuss liability issues, this would place “an undue burden on the
physician-patient relationship,” In re Xarelto (Rivaroxaban) Prod. Liab. Litig., 2016 WL
915288, at *6, and Smith & Nephew can question the treating physicians on liability issues
during their depositions.
The court also will deny Smith & Nephew’s request to question all treating physicians
first at depositions. As stated above, Smith & Nephew has not provided sufficient evidence of
bias in order to change the current discovery procedures. See In re Testosterone Replacement
Therapy Prod. Liab. Litig., 167 F. Supp. 3d at 940 (rejecting request to allow the defendant to
examine each treating physician first because “disclosure of plaintiffs' 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.”).
Finally, the court will grant Smith & Nephew’s request to require plaintiffs’ counsel to
notify each physician it contacts ex parte that Smith & Nephew is precluded from meeting with

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Neither party argues that whether Smith & Nephew can engage in ex parte conversations with treating physicians
is governed by the underlying state privilege law in each case.

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them or showing them any documents prior to the deposition. It does not appear that the
plaintiffs contest this, and the court finds it is a reasonable measure. The plaintiffs’ counsel
should provide each treating physician a letter, to be agreed on by the parties, that explains that
defense counsel are not permitted to meet with the physician prior to the deposition, but will
participate in the deposition and may have different documents to share.
CONCLUSION
For the reasons stated above, the court will grant in part and deny in part Smith &
Nephew’s motion for an amended order governing ex parte contacts. A separate order follows.

4/27/20
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Date

/S/
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Catherine C. Blake
United States District Judge

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