The special master presiding in the Zoloft federal multidistrict litigation has recommended that plaintiffs' counsel be directed to disclose documents they provide to plaintiffs' physicians as well as communications about compensation to physicians.

The litigation involves plaintiffs who allege that the use of Zoloft caused birth defects in their children.

Andrew A. Chirls, special discovery master in the litigation and of Fineman Krekstein & Harris, said the disclosure of documents given to plaintiffs' physicians by plaintiffs' counsel should be within a week of their conveyance to the doctors or three days before any physician deposition.

While Pfizer had argued that the plaintiffs' lawyers should be cabined to only discuss the individual care of the individual plaintiff with plaintiffs' doctors, the plaintiffs proposed that the protocol should have no limitations with either plaintiffs' lawyers or defense lawyers having ex parte contacts with any of the plaintiffs' treating or prescribing physicians, according to Chirls' most recent master's report. The plaintiffs also argued that ex parte contacts should be governed by the individual rules set by each state in which those contacts occurred.

Chirls reasoned that, if he was going to recommend rules about plaintiffs' counsel's contact with physicians that are different from the states in which those contacts are made, it would be because the MDL's administration would be improved by uniform rules, because "the mass tort administration context gives rise to issues of fairness that are different from those presented in standard cases that are not consolidated into mass tort forums," and because that, as Pfizer argued, "it is better to anticipate abuses by the plaintiffs than it is to have to deal with them after discovery has progressed."

But Chirls said that none of those considerations were "weighty enough" to "develop a uniform rule to govern all of these ex parte contacts where the uniform rule will differ from the varying rules of many of these states where these contacts will occur."

There is no suggestion that the plaintiffs' counsel have engaged in any abuses regarding physicians, Chirls said.

U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania, presiding judge over the Zoloft litigation, must still decide whether she will adopt Chirls' recommendations.

Many states have rules limiting discussions between defense counsel and plaintiffs' health-care providers because of the physician-patient privilege, Chirls said, but that tends to be waived when a patient makes a legal claim putting his or her medical condition at issue. However, defense counsel cannot have "unrestricted discussions with the physician," the special master said.

Pfizer sought to impose similar restrictions that are placed on defense counsel on plaintiffs' counsel, Chirls said.

There were 25 bellwether cases selected for the initial rounds of discovery, but some of the cases picked by the defense side have been dismissed by the plaintiffs.

Co-lead counsel of the plaintiffs' steering committee's executive committee, Dianne Nast of NastLaw in Philadelphia, said in an interview that Pfizer wants the judge to enter a blanket rule creating some provisions that are not in state law, including receiving the documents plaintiffs' counsel would use with physicians, but the plaintiffs would rather apply individual state law.

Giving documents ahead of time "makes the deposition move faster," Nast said.

"We oppose this uniform across-the-board rule," Nast said. "We wanted each state's law to apply. There were issues of privilege. The issue of privilege was this: We argued, I believe successfully, that this issue, the relation between the patient and treating physician, is a subject that is governed by state law and we shouldn't change it in a federal court pretrial order."

"The MDL special discovery master has issued his report providing recommendations for the judge to consider when finalizing rules for discovery in the MDL. Pfizer awaits the judge's ruling on the report and will be guided by the court's decision," Pfizer said in a statement.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.