In re Pelvic Mesh/Gynecare Litigation, A-5685-10T4; Appellate Division; opinion by Ashrafi, J.A.D.; concurrence by Sabatino, J.A.D.; decided and approved for publication June 1, 2012. Before Judges A.A. Rodríguez, Sabatino and Ashrafi. On appeal from the Law Division, Atlantic County, L-6341-10. [Sat below: Judge Higbee.] DDS No. 32-2-6475 [55 pp.]

Defendants Johnson & Johnson and Ethicon Inc. designed, manufactured, marketed and sold pelvic mesh medical devices used primarily to treat pelvic organ prolapse and stress urinary incontinence. In a public health notification issued on Oct. 20, 2008, the Food and Drug Administration warned health-care practitioners about “serious” complications associated with transvaginal placement of surgical mesh.

Several hundred plaintiffs from many states have individually filed suit in New Jersey against Johnson & Johnson and Ethicon, alleging they have suffered injuries caused by a line of defendants’ medical products. The Supreme Court assigned the cases to the Law Division, Atlantic County, for joint case management.

Subsequently, the court issued a pretrial order barring defendants from consulting with or retaining as an expert witness any physician who had at any time treated any plaintiff in the pelvic mesh litigation as identified in plaintiffs’ list. At the time of the court’s order, the number of plaintiffs had risen to more than 220. Defendants estimated that more than 1,000 physicians were thus disqualified as potential defense experts. At the time appellate briefs were filed, the list numbered about 450 plaintiffs and about 1,300 physicians.

The Appellate Division granted defendants leave to appeal from the order barring defendants from consulting with or retaining as an expert witness any physician who has at any time treated one or more of the plaintiffs.

Held: The trial court exceeded its discretion in this multiplaintiff, jointly case-managed litigation by ordering that defendants were barred from retaining as an expert witness or consulting with any physician who has at any time treated one or more of the several hundred plaintiffs.

Defendants argue that the disqualification and protective order profoundly impairs defendants’ ability to defend these lawsuits. They assert that the surgeons and other specialists in the United States who have experience with defendants’ pelvic mesh products are best qualified to provide vital information and testimony as experts on the use of defendants’ products, but those same physicians are also likely to have treated or consulted with a patient who is now a plaintiff or in the future may become a plaintiff in this jointly managed, multiplaintiff litigation.

Defendants further assert that the order places defendants in the precarious position of consulting and preparing experts only to have them later disqualified as new plaintiffs are added. Defendants contend that the court’s order will force them to rely on physicians who have less direct patient experience and knowledge of their pelvic mesh products, or perhaps experts who do not practice medicine in the United States. Conversely, plaintiffs will have the advantage of consulting with and presenting testimony from American physicians who have treated patients and are personally familiar with the use of defendants’ pelvic mesh products.

One of the reasons the trial court gave for its disqualification and protective order was that employment of a treating physician as a defense expert “could interfere with the doctor-patient privilege.” However, because plaintiffs have filed suit, they have waived a claim of privilege with respect to any medical condition relevant to their claims.

The key issue in this appeal is not the physician-patient privilege, but whether some other rule or judicial or public policy categorically bars a treating physician from serving as an expert witness against the “litigation interests” of his or her patient, although in a different plaintiff’s case.

The appellate panel holds that the trial court inappropriately equated a plaintiff’s “litigation interests” with a patient’s “medical interests,” and elevated those “litigation interests” to a pre-emptive level. It imposed sweeping restrictions on physicians that allow litigation instituted by a current or former patient to interfere with the physician’s professional judgment about the medical interests of all the physician’s patients. Moreover, it deprived defendants of fair access to physicians who could be among the best-qualified experts in these cases.

The trial court’s concerns about medical treatment and erosion of trust do not apply to a physician whose treatment of or consultation with a patient-plaintiff has ended, although that physician must continue to maintain the physician-patient privilege where required. A treating physician is not categorically precluded by the physician-patient privilege, by other rules of evidence, or by case law from testifying adversely to a patient’s interests in litigation, even if such testimony might erode the patient’s trust in the physician.

The mass tort procedures for managing coordinated litigation would unfairly hinder defendants’ right to defend lawsuits such as these if plaintiffs as a group may engage as experts any qualified physicians with knowledge and experience but defendants may not. The trial court’s order unfairly impeded defendants’ access to many of those physicians, and must be reversed.

Concurring, Judge Sabatino would reverse the order on the ground that the disqualification provisions are overbroad and unduly burdensome on the defense, particularly in light of the number of potential defense experts that were or will be disqualified.

For appellants Ethicon Inc. and Johnson & Johnson — Kelly S. Crawford (Riker, Danzig, Scherer, Hyland & Perretti). For respondent Marci Levin — Adam M. Slater (Mazie Slater Katz & Freeman). For amici curiae: Product Liability Advisory Council Inc. — McCarter & English (David R. Kott and Gary R. Tulp on the brief); New Jersey Lawsuit Reform Alliance — Gibbons (Patrick C. Dunican Jr. on the brief).