An Oldie But Goodie


We’ve always been interested in being allowed to have informal (sometimes called “ex parte”) interviews with treating physicians of the plaintiffs. We think they’re fact witnesses (the most important ones in many, if not most, cases) and that by filing a personal injury lawsuit a plaintiff waives any expectation of physician/patient confidentiality as to the injuries being claimed and their treatment.

Good treating physician testimony can also win a case in and of itself – on the basis of no causation of any purported warning defect under the learned intermediary rule.

We’ve been sufficiently interested in the informal interview question that in late 2008, we even prepared our own 50-state survey of what we understood the states’ law to be on the subject.

Little did we know.

Well, it pays to keep our eyes open. Just the other day the court in the Aredia/Zometa MDL released a valedictory of sorts – an order summarizing that MDL’s activity for the benefit of judges in remand cases. In re Aredia & Zometa Products Liability Litigation, 2011 WL 2182824 (M.D. Tenn. June 3, 2011). We got word of this because the court mentioned its Buckman decisions on fraud on the FDA claims. Buckman citations tend to be interesting, so we have a search that looks for them.

But that wasn’t what caught our eyes when we skimmed through the order. Rather, our interest was piqued when the court stated...

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