To Call or Not to Call

For those readers unfamiliar with the topic, the ex parte contacts issue concerns whether a defense attorney can conduct private discussions ' typically outside the presence of plaintiff's counsel ' with a plaintiff's treating physician. The availability of ex parte contacts is a contentious issue, and litigation over the topic has generated a body of case law that is as inconsistent as it is extensive.

Without wading too far into the ex parte abyss, one can say that the permissibility of such contacts is a complicated question that typically implicates state statutory and common law, federal statutory law, federal procedure, the doctor/patient privilege, and physicians' ethical responsibilities and fiduciary duties to their patients. Some of the more common arguments raised by both sides of the bar are juxtaposed in the Table on page 7.

Myriad cases address the arguments for and against ex parte contacts, and each of the arguments outlined above has achieved varying degrees of success. The ability to conduct ex parte contacts varies greatly from one jurisdiction to the next (and even within the same jurisdiction), and, therefore, practitioners who are concerned about their ability to engage in ex parte contacts should carefully consult the case law from the relevant jurisdiction. Again, this article is not a 50-state survey on the viability of ex parte contacts, nor could it be given the variability in the case law.

The Analysis

For present purposes, it will suffice to say that in determining whether to allow ex parte contacts in a given case, courts today often begin with an analysis of a state's common law or statutory mandates. If state law prohibits ex parte contacts for one or more of the reasons outlined above, the analysis generally ends there.

If state law does not categorically prohibit ex parte contacts, a growing majority of courts then look to whether and how HIPAA affects the ex parte scenario. Courts turn to HIPAA under the theory that it preempts state law in those instances where state law places fewer restrictions on the disclosure of protected health information (see 45 C.F.R ' 160.203(b) (HIPAA preempts contrary provisions of state law unless the state law provisions are “more stringent” than HIPAA)), and so HIPAA is typically implicated where no statute or common law rule completely bars ex parte contacts.

Yet it is far from settled what, if any, impact HIPAA has on a defendant's ability to conduct ex parte contacts. Some courts have held that HIPAA prohibits such contacts. See Crenshaw v. Mony Life Ins. Co., 318 F. Supp. 2d 1015, 1029 (S.D. Cal. 2004) (“HIPAA does not authorize ex parte contacts with healthcare providers.”); Proctor v. Messina, 320 S.W.3d 145, 152-53 (Mo. 2010) (“HIPAA's general rule is that ex parte communications with a litigant patient's physician are prohibited. Absent an exception to this general rule in the enumerated exceptions outlined in HIPAA, HIPAA plainly prohibits such communications.”).

Other courts have concluded that nothing in HIPAA prohibits ex parte contacts. See Pratt v. Petelin, No. 09-2252, 2010 WL 446474, at *8 (D. Kan. Feb. 4, 2010) (permitting ex parte contacts and noting that HIPAA does not preclude them). And some courts decide the issue with little or no mention whatsoever of HIPAA after balancing the above arguments for and against ex parte contacts. See, e.g., In Re Zimmer Nexgen Knee Implant Prod. Liab. Litig., — F. Supp. 2d –, 2012 WL 3582689 (N.D. Ill. 2012); Weiss v. Astellas Pharma, No. 05-527, 2007 WL 2137782 (E.D. Ky. July 23, 2007).

Practical Considerations

A number of practical considerations emerge from the uncertainty surrounding ex parte contacts. If the legal arguments for such contacts in a certain jurisdiction are strong, a defendant in most cases should preemptively ask the plaintiff to execute HIPAA-compliant authorizations that expressly permit them. Once the plaintiff refuses, more often than not the court will then decide the issue via the defendant's motion to permit ex parte contacts or the plaintiff's corresponding motion to prohibit them. If and when a court reaches the issue, defendants often benefit from including certain concessions in a request for ex parte contacts, such as:

1. An agreement to inform physicians that conversation should be limited to relevant health complaints and issues;
2. An agreement to inform physicians that the ex parte meetings are completely voluntary;
3. An agreement to inform physicians that they may request the attendance of plaintiff's counsel at any ex parte meeting; and
4. An agreement to provide plaintiff's counsel with prior notice of any ex parte meetings.

Although concessions like these may seem unnecessarily drastic and perhaps counterproductive to many of the goals of ex parte contacts, when employed, these requirements generally do not undermine the utility of the contacts. Indeed, working under constraints similar to those outlined above, the defendant in the Aredia'/Zometa' mass tort litigation has had remarkable success using ex parte contacts to resolve dubious claims.

Aredia/Zometa Litigation

In the Aredia'/Zometa' litigation, the plaintiffs claim that their use of Aredia' or Zometa', two prescription pharmaceuticals manufactured by Novartis Pharmaceuticals Corporation, has caused an adverse reaction known as osteonecrosis of the jaw (ONJ) and that Novartis failed to adequately warn about this potential side effect. To meet their burden of proof on this theory of liability, the plaintiffs in the Aredia'/Zometa' litigation ' as with any plaintiff prosecuting a pharmaceutical product liability claim ' must prove that some deficiency in the FDA-approved labeling for Aredia' and Zometa' precipitated their claimed injury. To state it another way, the plaintiffs must prove that a different or additional warning by the manufacturer would have prevented their injuries.

In many pharmaceutical cases, the plaintiff's failure-to-warn claim rises and falls with the testimony of the prescribing physician, and in this respect the Aredia'/Zometa' litigation is no different. What is unique is that Aredia' and Zometa' are essential, standard-of-care therapies for many cancer patients. These two drugs (which fall into a class of drugs generally known as bisphosphonates) treat complications of metastatic bone cancer, such as hypercalcemia and “skeletal-related events” (like pathologic bone fractures), and therefore contribute greatly to both the quality of life and survivability of cancer patients. Consequently, prescribing physicians in the Aredia'/Zometa' litigation routinely testify that the benefits of Aredia' and Zometa' so far outweigh the risk of ONJ that the physicians would prescribe these drugs to their patients even if “properly” warned about the risk of ONJ.'

The benefits testimony offered by the prescribing physicians has undermined the plaintiffs' primary failure-to-warn claim. Unable to build their case upon the testimony of prescribing physicians, the plaintiffs in the Aredia'/Zometa' litigation devised an alternate failure-to-warn theory: The plaintiffs claim that ONJ is triggered by an invasive dental procedure ' a tooth extraction, for example ' performed while the plaintiff is on Aredia' or Zometa' therapy. Thus, in the vast majority of these cases, the plaintiffs now argue that the defendant failed to warn dental providers (as opposed to prescribing physicians) against performing invasive dental procedures in patients undergoing bisphosphonate therapy. Had the defendant issued warnings of this variety, the argument goes, the plaintiffs never would have had the tooth extractions that ultimately led to their ONJ. Instead, the plaintiffs would have opted for less invasive dental procedures, such as root canals or simple fillings, which allegedly do not lead to ONJ.

Ex Parte Contacts in Eberhart

Defense counsel confronted this type of secondary failure-to-warn theory in Eberhart v. Novartis Pharmaceuticals Corporation, No. 1:08-cv-2542 (N.D. Ga.). In Eberhart, the prescribing physician predictably testified at deposition that she would have prescribed Aredia'/Zometa' to the plaintiff regardless of any warning about the risk of ONJ. This testimony was not dispositive at the summary judgment stage, however, because the MDL court overseeing the litigation credited the plaintiff's affidavit (submitted in response to the defendant's pending summary judgment motion) in which the plaintiff claimed she would have opted for a root canal ' and thus avoided the invasive dental extraction that led to her ONJ ' if the defendant had only provided a proper warning to her doctors. After denying the defendant's summary judgment motion, the MDL court remanded the Eberhart case to the United States District Court for the Northern District of Georgia for further proceedings, including trial.

Counsel for the defendant strongly suspected that the plaintiff could not support the warnings theory advanced for the first time at the summary judgment stage of the case. Therefore, undeterred by the initial denial of its motion for summary judgment, the defendant availed itself of the existing MDL order permitting ex parte contacts and conferred with the only endodontist (the type of dentists that do root canals) who ever examined the plaintiff. The ex parte discussions quickly revealed that the extraction that presumably led to the plaintiff's ONJ was unavoidable because the plaintiff's dental problem could not have been cured by a less invasive procedure, such as the root canal posited by the plaintiff's affidavit. To rebut the plaintiff's warnings theory affirmatively, the defendant obtained a declaration from the endodontist explaining that a root canal was not an option for the plaintiff. Armed with this declaration, the defendant renewed its motion for summary judgment before the Northern District of Georgia, arguing anew that the newly-acquired declaration proved that there were no alternatives to extraction, and, therefore, the proximate cause chain was broken; no different or additional warning could have prevented the plaintiff's injury.

The trial court eventually agreed with the defendant that the endodontist's declaration completely discredited the plaintiff's prior affidavit, which represented the only summary judgment evidence plaintiff presented in opposition to defendant's motion. The court's decision awarding the defendant summary judgment in Eberhart v. Novartis Pharmaceuticals Corporation, 867 F. Supp. 2d 1241 (N.D. Ga. 2011), highlights the dispositive impact of the declaration that was obtained only through the use of ex parte contacts.

Ex Parte Contacts in Zimmerman

To avoid summary judgment on her failure-to-warn claim in Zimmerman v. Novartis Pharmaceuticals Corporation, No. RWT 08-cv-2089 (D. Md.), the plaintiff argued that her prescribing doctor would have withheld her Aredia'/Zometa' therapy for a period of months prior to her tooth extraction, a so-called “drug holiday” that allegedly would have prevented her from developing ONJ. The court credited this warnings theory and, just as in Eberhart, initially denied the defendant's motion for summary judgment on proximate causation.

Defense counsel considered the plaintiff's “drug holiday” theory a curious tactic given that the plaintiff's own expert witnesses had repeatedly testified that there is no evidence that “drug holidays” avoid or even lessen the risk of ONJ. It was therefore of little surprise to the defendant that the plaintiff eventually abandoned this untenable argument. It was somewhat more surprising that the plaintiff did so only weeks prior to trial.

Thus, with a last-minute change of course, the Zimmerman plaintiff substituted various other failure-to-warn theories in place of those she had advanced throughout the course of the litigation. Chief among those was that the manufacturer should have instructed prescribing physicians to send their patients to the dentist before commencing bisphosphonate therapy, the idea being that any invasive dental procedures (which the plaintiffs believe precipitate ONJ) could be accomplished before beginning treatment with Aredia'/Zometa'. The plaintiff in Zimmerman argued that had her doctor been so warned, and had she gone to the dentist before starting bisphosphonates, her dental problems could have been addressed and she would not have required the tooth extraction years later while on bisphosphonate therapy that allegedly caused her ONJ.

With little time to waste prior to trial ' but now with a firm handle on the plaintiff's failure-to-warn claim ' the defendant utilized ex parte interviews with the plaintiff's oral surgeon to confirm that any warning about a pre-bisphosphonate dental examination would have made no difference for the plaintiff. In the ex parte interviews, the oral surgeon informed the defendant that he would not have extracted the tooth at issue prior to the bisphosphonate therapy started years previously for the simple reason that there was nothing wrong with the tooth at the time. As in Eberhart, the doctor ultimately executed an affidavit disproving the plaintiff's proximate causation theory, and using this affidavit the defendant once again renewed its motion for summary judgment, which the court finally granted. See Zimmerman v. Novartis Pharmaceuticals Corp., Case No. RWT 08-cv-2089 (D. Md. Nov. 16, 2012). And so in Zimmerman, the last-minute ex parte contacts allowed the defendant to narrow the issues, establish for the court that the plaintiff could not prove proximate causation regardless of what her failure-to-warn theory became, and avoid a needless and costly trial.

Conclusion

As these two examples from the Aredia'/Zometa' litigation demonstrate, ex parte contacts are an indispensable part of pretrial discovery and trial preparation. A plaintiff's liability theories often change throughout the course of a case, and when the change takes place after formal discovery is closed, ex parte contacts provide a defendant with an effective and efficient recourse, if not the only recourse at all. The lesson is that defendants should do what they can to obtain ex parte contacts with treating physicians. If they cannot obtain them, they should try to level the playing field by precluding plaintiffs' counsel from engaging in ex parte contacts with these crucial witnesses.

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Philip Busman is a Partner at Hollingsworth LLP, Washington, DC, as was, at the time of this writing, Michael L. Junk. Busman specializes in the defense of serial and mass tort products liability litigation.

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This article briefly examines the controversial topic of ex parte contacts, and describes how such contacts were successfully employed to obtain summary judgment in two separate cases pending within the Aredia'/Zometa' mass tort litigation. It is not a 50-state survey on the viability of ex parte contacts. Rather, the article provides practical examples of how they can be used, with the hope that by doing so, it might draw attention to the vital role that ex parte contacts play in the defense of pharmaceutical product liability litigation.

At the same time, we hope to counteract the argument that ex parte contacts serve no legitimate purpose given the availability of “formal” discovery mechanisms. As these examples from the Aredia'/Zometa' litigation and countless other examples show, ex parte contacts play a key role in combating ever-changing liability theories and ensuring that non-meritorious cases meet a just, if not speedy, end.

The Basics

For those readers unfamiliar with the topic, the ex parte contacts issue concerns whether a defense attorney can conduct private discussions ' typically outside the presence of plaintiff's counsel ' with a plaintiff's treating physician. The availability of ex parte contacts is a contentious issue, and litigation over the topic has generated a body of case law that is as inconsistent as it is extensive.

Without wading too far into the ex parte abyss, one can say that the permissibility of such contacts is a complicated question that typically implicates state statutory and common law, federal statutory law, federal procedure, the doctor/patient privilege, and physicians' ethical responsibilities and fiduciary duties to their patients. Some of the more common arguments raised by both sides of the bar are juxtaposed in the Table on page 7.

Myriad cases address the arguments for and against ex parte contacts, and each of the arguments outlined above has achieved varying degrees of success. The ability to conduct ex parte contacts varies greatly from one jurisdiction to the next (and even within the same jurisdiction), and, therefore, practitioners who are concerned about their ability to engage in ex parte contacts should carefully consult the case law from the relevant jurisdiction. Again, this article is not a 50-state survey on the viability of ex parte contacts, nor could it be given the variability in the case law.

The Analysis

For present purposes, it will suffice to say that in determining whether to allow ex parte contacts in a given case, courts today often begin with an analysis of a state's common law or statutory mandates. If state law prohibits ex parte contacts for one or more of the reasons outlined above, the analysis generally ends there.

If state law does not categorically prohibit ex parte contacts, a growing majority of courts then look to whether and how HIPAA affects the ex parte scenario. Courts turn to HIPAA under the theory that it preempts state law in those instances where state law places fewer restrictions on the disclosure of protected health information (see 45 C.F.R ' 160.203(b) (HIPAA preempts contrary provisions of state law unless the state law provisions are “more stringent” than HIPAA)), and so HIPAA is typically implicated where no statute or common law rule completely bars ex parte contacts.

Yet it is far from settled what, if any, impact HIPAA has on a defendant's ability to conduct ex parte contacts. Some courts have held that HIPAA prohibits such contacts. See Crenshaw v. Mony Life Ins. Co. , 318 F. Supp. 2d 1015, 1029 (S.D. Cal. 2004) (“HIPAA does not authorize ex parte contacts with healthcare providers.”); Proctor v. Messina , 320 S.W.3d 145, 152-53 (Mo. 2010) (“HIPAA's general rule is that ex parte communications with a litigant patient's physician are prohibited. Absent an exception to this general rule in the enumerated exceptions outlined in HIPAA, HIPAA plainly prohibits such communications.”).

Other courts have concluded that nothing in HIPAA prohibits ex parte contacts. See Pratt v. Petelin, No. 09-2252, 2010 WL 446474, at *8 (D. Kan. Feb. 4, 2010) (permitting ex parte contacts and noting that HIPAA does not preclude them). And some courts decide the issue with little or no mention whatsoever of HIPAA after balancing the above arguments for and against ex parte contacts. See, e.g., In Re Zimmer Nexgen Knee Implant Prod. Liab. Litig., — F. Supp. 2d –, 2012 WL 3582689 (N.D. Ill. 2012); Weiss v. Astellas Pharma, No. 05-527, 2007 WL 2137782 (E.D. Ky. July 23, 2007).

Practical Considerations

A number of practical considerations emerge from the uncertainty surrounding ex parte contacts. If the legal arguments for such contacts in a certain jurisdiction are strong, a defendant in most cases should preemptively ask the plaintiff to execute HIPAA-compliant authorizations that expressly permit them. Once the plaintiff refuses, more often than not the court will then decide the issue via the defendant's motion to permit ex parte contacts or the plaintiff's corresponding motion to prohibit them. If and when a court reaches the issue, defendants often benefit from including certain concessions in a request for ex parte contacts, such as:

1. An agreement to inform physicians that conversation should be limited to relevant health complaints and issues;
2. An agreement to inform physicians that the ex parte meetings are completely voluntary;
3. An agreement to inform physicians that they may request the attendance of plaintiff's counsel at any ex parte meeting; and
4. An agreement to provide plaintiff's counsel with prior notice of any ex parte meetings.

Although concessions like these may seem unnecessarily drastic and perhaps counterproductive to many of the goals of ex parte contacts, when employed, these requirements generally do not undermine the utility of the contacts. Indeed, working under constraints similar to those outlined above, the defendant in the Aredia'/Zometa' mass tort litigation has had remarkable success using ex parte contacts to resolve dubious claims.

Aredia/Zometa Litigation

In the Aredia'/Zometa' litigation, the plaintiffs claim that their use of Aredia' or Zometa', two prescription pharmaceuticals manufactured by Novartis Pharmaceuticals Corporation, has caused an adverse reaction known as osteonecrosis of the jaw (ONJ) and that Novartis failed to adequately warn about this potential side effect. To meet their burden of proof on this theory of liability, the plaintiffs in the Aredia'/Zometa' litigation ' as with any plaintiff prosecuting a pharmaceutical product liability claim ' must prove that some deficiency in the FDA-approved labeling for Aredia' and Zometa' precipitated their claimed injury. To state it another way, the plaintiffs must prove that a different or additional warning by the manufacturer would have prevented their injuries.

In many pharmaceutical cases, the plaintiff's failure-to-warn claim rises and falls with the testimony of the prescribing physician, and in this respect the Aredia'/Zometa' litigation is no different. What is unique is that Aredia' and Zometa' are essential, standard-of-care therapies for many cancer patients. These two drugs (which fall into a class of drugs generally known as bisphosphonates) treat complications of metastatic bone cancer, such as hypercalcemia and “skeletal-related events” (like pathologic bone fractures), and therefore contribute greatly to both the quality of life and survivability of cancer patients. Consequently, prescribing physicians in the Aredia'/Zometa' litigation routinely testify that the benefits of Aredia' and Zometa' so far outweigh the risk of ONJ that the physicians would prescribe these drugs to their patients even if “properly” warned about the risk of ONJ.'

The benefits testimony offered by the prescribing physicians has undermined the plaintiffs' primary failure-to-warn claim. Unable to build their case upon the testimony of prescribing physicians, the plaintiffs in the Aredia'/Zometa' litigation devised an alternate failure-to-warn theory: The plaintiffs claim that ONJ is triggered by an invasive dental procedure ' a tooth extraction, for example ' performed while the plaintiff is on Aredia' or Zometa' therapy. Thus, in the vast majority of these cases, the plaintiffs now argue that the defendant failed to warn dental providers (as opposed to prescribing physicians) against performing invasive dental procedures in patients undergoing bisphosphonate therapy. Had the defendant issued warnings of this variety, the argument goes, the plaintiffs never would have had the tooth extractions that ultimately led to their ONJ. Instead, the plaintiffs would have opted for less invasive dental procedures, such as root canals or simple fillings, which allegedly do not lead to ONJ.

Ex Parte Contacts in Eberhart

Defense counsel confronted this type of secondary failure-to-warn theory in Eberhart v. Novartis Pharmaceuticals Corporation, No. 1:08-cv-2542 (N.D. Ga.). In Eberhart, the prescribing physician predictably testified at deposition that she would have prescribed Aredia'/Zometa' to the plaintiff regardless of any warning about the risk of ONJ. This testimony was not dispositive at the summary judgment stage, however, because the MDL court overseeing the litigation credited the plaintiff's affidavit (submitted in response to the defendant's pending summary judgment motion) in which the plaintiff claimed she would have opted for a root canal ' and thus avoided the invasive dental extraction that led to her ONJ ' if the defendant had only provided a proper warning to her doctors. After denying the defendant's summary judgment motion, the MDL court remanded the Eberhart case to the United States District Court for the Northern District of Georgia for further proceedings, including trial.

Counsel for the defendant strongly suspected that the plaintiff could not support the warnings theory advanced for the first time at the summary judgment stage of the case. Therefore, undeterred by the initial denial of its motion for summary judgment, the defendant availed itself of the existing MDL order permitting ex parte contacts and conferred with the only endodontist (the type of dentists that do root canals) who ever examined the plaintiff. The ex parte discussions quickly revealed that the extraction that presumably led to the plaintiff's ONJ was unavoidable because the plaintiff's dental problem could not have been cured by a less invasive procedure, such as the root canal posited by the plaintiff's affidavit. To rebut the plaintiff's warnings theory affirmatively, the defendant obtained a declaration from the endodontist explaining that a root canal was not an option for the plaintiff. Armed with this declaration, the defendant renewed its motion for summary judgment before the Northern District of Georgia, arguing anew that the newly-acquired declaration proved that there were no alternatives to extraction, and, therefore, the proximate cause chain was broken; no different or additional warning could have prevented the plaintiff's injury.

The trial court eventually agreed with the defendant that the endodontist's declaration completely discredited the plaintiff's prior affidavit, which represented the only summary judgment evidence plaintiff presented in opposition to defendant's motion. The court's decision awarding the defendant summary judgment in Eberhart v. Novartis Pharmaceuticals Corporation , 867 F. Supp. 2d 1241 (N.D. Ga. 2011), highlights the dispositive impact of the declaration that was obtained only through the use of ex parte contacts.

Ex Parte Contacts in Zimmerman

To avoid summary judgment on her failure-to-warn claim in Zimmerman v. Novartis Pharmaceuticals Corporation, No. RWT 08-cv-2089 (D. Md.), the plaintiff argued that her prescribing doctor would have withheld her Aredia'/Zometa' therapy for a period of months prior to her tooth extraction, a so-called “drug holiday” that allegedly would have prevented her from developing ONJ. The court credited this warnings theory and, just as in Eberhart, initially denied the defendant's motion for summary judgment on proximate causation.

Defense counsel considered the plaintiff's “drug holiday” theory a curious tactic given that the plaintiff's own expert witnesses had repeatedly testified that there is no evidence that “drug holidays” avoid or even lessen the risk of ONJ. It was therefore of little surprise to the defendant that the plaintiff eventually abandoned this untenable argument. It was somewhat more surprising that the plaintiff did so only weeks prior to trial.

Thus, with a last-minute change of course, the Zimmerman plaintiff substituted various other failure-to-warn theories in place of those she had advanced throughout the course of the litigation. Chief among those was that the manufacturer should have instructed prescribing physicians to send their patients to the dentist before commencing bisphosphonate therapy, the idea being that any invasive dental procedures (which the plaintiffs believe precipitate ONJ) could be accomplished before beginning treatment with Aredia'/Zometa'. The plaintiff in Zimmerman argued that had her doctor been so warned, and had she gone to the dentist before starting bisphosphonates, her dental problems could have been addressed and she would not have required the tooth extraction years later while on bisphosphonate therapy that allegedly caused her ONJ.

With little time to waste prior to trial ' but now with a firm handle on the plaintiff's failure-to-warn claim ' the defendant utilized ex parte interviews with the plaintiff's oral surgeon to confirm that any warning about a pre-bisphosphonate dental examination would have made no difference for the plaintiff. In the ex parte interviews, the oral surgeon informed the defendant that he would not have extracted the tooth at issue prior to the bisphosphonate therapy started years previously for the simple reason that there was nothing wrong with the tooth at the time. As in Eberhart, the doctor ultimately executed an affidavit disproving the plaintiff's proximate causation theory, and using this affidavit the defendant once again renewed its motion for summary judgment, which the court finally granted. See Zimmerman v. Novartis Pharmaceuticals Corp., Case No. RWT 08-cv-2089 (D. Md. Nov. 16, 2012). And so in Zimmerman, the last-minute ex parte contacts allowed the defendant to narrow the issues, establish for the court that the plaintiff could not prove proximate causation regardless of what her failure-to-warn theory became, and avoid a needless and costly trial.

Conclusion

As these two examples from the Aredia'/Zometa' litigation demonstrate, ex parte contacts are an indispensable part of pretrial discovery and trial preparation. A plaintiff's liability theories often change throughout the course of a case, and when the change takes place after formal discovery is closed, ex parte contacts provide a defendant with an effective and efficient recourse, if not the only recourse at all. The lesson is that defendants should do what they can to obtain ex parte contacts with treating physicians. If they cannot obtain them, they should try to level the playing field by precluding plaintiffs' counsel from engaging in ex parte contacts with these crucial witnesses.

'

'[IMGCAP(1)]

Philip Busman is a Partner at Hollingsworth LLP, Washington, DC, as was, at the time of this writing, Michael L. Junk. Busman specializes in the defense of serial and mass tort products liability litigation.

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