The defense may retain plaintiff’s treating physicians as expert witnesses.

In this suit on behalf of several hundred plaintiffs against Johnson & Johnson and Ethicon, Inc. for alleged injuries caused by medical devices, the Appellate Division concluded that a physician’s treatment of a plaintiff cannot bar the physician from serving as an expert witness for the defense. Originally, the trial court granted a motion barring the defense from consulting with physicians who had seen a number of the plaintiffs for fear that the patient-physician privilege would be violated. The Appellate Division reversed, agreeing with the defense that, due to the size of the case, such a bar would preclude nearly 1,000 physicians who had actual experience with the medical devices. In reversing the lower court decision, the Appellate Division differentiated between a patient-plaintiff’s “litigation interests” and his/her “medical interests” by explaining “that the ‘litigation interests' of a patient are not necessarily equivalent to the patient's ‘medical interests,’ and they do not define the physician's duties to all patients.” The court, therefore, concluded that the defendants could not be barred from utilizing treating physicians as expert witnesses. It is unclear yet whether this decision will be extended to standard medical malpractice claims or restricted to mass-torts litigation.

Case Law Alert - 4th Qtr 2012