In prescription medical product legal responsibility litigation, each side make investments quite a bit of their professional witnesses.  Along with spending time, cash, and energy, we work out our authorized theories with our specialists, and share with them our views of the info, each good info and dangerous info.  Thus, when the opposite facet inveigles considered one of ours to change sides – normally with the promise of much more cash for lots extra testimony – the consequence will be a whole lot of collateral litigation.

We’ve blogged a couple of instances earlier than about turncoat specialists, so the current choice in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our curiosity.  Then we found that Hawkins was solely the newest of a number of choices barring testimony by the identical turncoat professional – one Stephen Li – attributable to his prior employment with the identical defendant regarding product legal responsibility litigation involving the identical product (and different comparable merchandise, as effectively).  See additionally King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); however see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023).  We observe that a few different choices (each precluding Dr. Li from testifying) apparently exist, however as a result of they’re both oral or below seal, we now have not seen and don’t talk about them.  The plaintiffs in these instances have been named Sheehy and England.

Hawkins offers a great description of what occurred and when:

• Early 1990 – protection counsel first engaged Dr. Li in reference to litigation “involving varied hip gadgets”;
• Nineties – 2015 – Dr. Li was defendant’s “principal exterior advisor and testifying professional” in hip implant litigation “notably on instances involving polyethylene efficiency”;
• 2010 – Dr. Li first consulted by protection counsel regarding “MoM [metal-on-metal] hip alternative” litigation;
• 2010 – Dr. Li advised protection counsel he had been “approached” by the opposite facet to “function an professional witness,” however had “decline[d]”’;
• October 2010 – Dr. Li mentioned a specific system and “MoM hips extra typically, as he anticipated [his client] may also wish to use Dr. Li as an professional within the litigation involving” the system within the Hawkins and different instances; “a lot of the dialogue was relevant to each . . . gadgets”;
• 2011 – MoM implant discussions continued “periodically” with Dr. Li, largely coping with “issues particular” to litigation involving the system within the Hawkins and different instances;
• August 2011 – protection counsel met with Dr. Li “to deal with understanding and creating defenses to points being raised by Plaintiffs, and within the scientific and medical literature relating to” the system at challenge, “talk about[ing] intimately [various] protection methods . . . to answer the evolving scientific and medical literature”;
• October 2013 – one other assembly with Dr. Li that “was very useful within the improvement and help of [the defendant’s] protection themes”;
• 2013 – 2015 – “occasional[]” communications between protection counsel and Dr. Li regarding litigation involving system in query;
• August 2015 – Dr. Li refused protection counsel’s request to “evaluate and critique” a plaintiffs’ professional’s report due to his “private, skilled and monetary relationships with” that professional;
• After August 2015 – Protection counsel “droop[ed] consulting with Dr. Li about MoM merchandise, however neither facet “formally terminated the consultancy.”

Hawkins, 2023 WL 7292164, at *2-3 (citations omitted).  All advised, the defendant, via counsel, paid Dr. Li over $23,000 solely “for his professional providers regarding” the system at challenge.  Id. at *3.

Dr. Li, after all, had his personal spin on what occurred, id. at *3, however his take was opposite to contemporaneous paperwork and thus not persuasive in Hawkins or another of the out there choices supporting his exclusion.  Even in Winkelmeyer, the place exclusion was denied, the choice was primarily based on a technicality.  2023 WL 2974480, at *1 (defendant “didn’t provide or provide to produce in its unique movement papers the paperwork it has now submitted for in digicam evaluate”) (footnote omitted).  Each choice that thought-about each side’ arguments totally has, on the deserves, held that the turncoat Dr. Li wouldn’t be allowed to testify.

As held in Hawkins, the “drastic measure” of professional disqualification was applicable as a result of the defendant each had a “cheap” perception that “it had a confidential relationship with the professional” and the turncoat professional had “acquired confidential info related to the present litigation.”  2023 WL 7292164, at *4 (quotation omitted).  The transferring defendant in Hawkins glad this check with the above proof of “particular and unambiguous disclosures that if revealed would prejudice the celebration.”  Id. (quotation and citation marks omitted).

Hawkins held, first, {that a} confidential relationship had existed (via counsel) between the defendant and Dr. Li previous to his try to change sides.  There had been “three in-person conferences and different periodic discussions relating, a minimum of partially, to” litigation involving the system at challenge in Hawkins.  2023 WL 7292164, at *5.  Throughout these encounters they mentioned “science and engineering . . ., as effectively authorized technique and defenses regarding litigation involving” the implant at challenge.  Id.  The proof thus “set up[ed] that protection litigation technique in regards to the [device at issue] was a transparent focus of [defense] counsel’s communications with Dr. Li,” id., for which he was compensated.  Id. at *6.  “It [wa]s additionally evident . . . that the connection between counsel and Dr. Li was undertaken in keeping with guidelines of ethics and confidentiality.”  Id.  Thus, it was “clear” that the defendant’s “counsel relied on Dr. Li to develop defenses and litigation technique in [this] litigation.”  Id.

The data mentioned with Dr. Li was additionally confidential – “readily recognized” as “lawyer work product” and “throughout the scope of the attorney-client privilege.”  Id. (citations and citation marks omitted).  The file contained “quite a few examples of the subjects that [defense counsel] mentioned with Dr. Li” that, in Hawkins, confirmed up in his professional report for the plaintiff.  Id.

[P]rior to rendering professional opinions for Plaintiffs, Dr. Li had already acquired, contributed to, and helped formulate the protection positions and techniques that relate to the very factors and opinions he now renders for Plaintiffs on this litigation.

Hawkins, 2023 WL 7292164, at *6 (quotation and citation marks omitted).  Likewise, the in digicam paperwork “replicate[ed] discussions of defensive litigation methods and responses to anticipated arguments from the plaintiffs’ specialists” that “qualif[ied] as lawyer work product.”  Id. at *7.

Given the character of each the contacts and the knowledge that was shared, Hawkins determined it was “truthful” to preclude the turncoat Dr. Li from testifying.  “[G]iven quite a few different courts [that] have disqualified Dr. Li on the identical grounds,” “Plaintiffs ought to have recognized about Dr. Li’s long-standing relationship with [the defendant], together with his session . . . about [this] litigation.”  Id.  With this historical past, plaintiffs took a calculated threat in designating Dr. Li.  Id.  When that threat crapped out , it was hardly unfair to require them to designate one other professional.

What about these “different courts”?  Right here they’re in chronological order.  In King, the courtroom additionally fond that “it was objectively cheap for Defendants to consider {that a} confidential relationship existed” with Dr. Li, given the identical historical past detailed in Hawkins.  2023 WL 5624710, at *7-8.  Dr. Li’s declare that he solely “met casually” with protection counsel “appear[ed] ludicrous given he billed for his time and was paid.”  Id. at *8.

The [same in camera] paperwork present that Dr. Li met with attorneys for Defendants for greater than dinner and drinks.  The paperwork [show] that Dr. Li was given entry to Defendants’ litigation methods, Dr. Li mentioned opposing specialists and how one can cross-examine them, Dr. Li and Defendants recognized potential issues Defendants may face and techniques to deal with them, and that Dr. Li and Defendants periodically reviewed new scientific articles which may have an effect on the litigation methods.

Id.  “[T]he integrity of the judicial course of” required Dr. Li’s exclusion as a result of “[a]llowing an professional to change sides is basically unfair.”  Id. at *9.

In Cannon, the check that “disqualification is warranted if the side-switching professional obtained privileged info from the primary celebration” was glad.  2023 WL 7477903, at *2.  First, the defendants had “an inexpensive foundation − perhaps even a compelling foundation − for believing they have been in a confidential relationship with Dr. Li.  Id. at *3 (emphasis unique).

Defendants engaged Dr. Li to help within the [current] litigation, had quite a few conferences with him over a number of years, repeatedly shared work product with him, supplied him with paperwork, paid him a considerable price, requested him to not talk about the case with the opposing events, and acquired assurances from him that he would defend Defendants’ info.  All these elements level in direction of a confidential relationship.

Cannon, 2023 WL 7477903, at *3 (citations and citation marks omitted).  Given all this, the dearth of “a written retention/confidentiality settlement” didn’t matter.  Id.  Cannon additionally rejected Dr. Li’s “dinner and drinks” excuse.  His “reminiscence [wa]s just too unreliable to belief.”  Id. at 4.  There was “just one viable conclusion right here: Defendants had an inexpensive foundation for concluding they have been in a confidential relationship with Dr. Li earlier than Plaintiff retained him as an professional on this case.”  Id. at *5

After an in depth dialogue, Cannon additionally discovered that Dr. Li had acquired confidential info as a part of his engagement with the defendants.  Id. at *5-6.  “[A]ll” of the knowledge was, at minimal, work product, and “some” of it “additionally f[e]ll[] throughout the scope of the attorney-client privilege.”  Id. at *6 (quotation and citation marks omitted).  “[M]uch of the knowledge is related to this case as a result of it implicates lots of the points on which Dr. Li now opines in his professional report.”  Id.  On these info, “any consequence apart from disqualification [of Dr. Li] would have a deleterious impression on judicial integrity.”  Id. at *6 n.7 (quotation and citation marks omitted).

Lastly, McCoy, 2023 WL 5624710, reached the identical conclusions.  First, it was “objectively cheap” for the defendants to consider that they had a confidential relationship with Dr. Li.  Id. at *6-7.  Dr. Li’s claims of “no recollection” have been rejected in gentle of contemporaneous documentation, which demonstrated “seek the advice of[ations] with counsel for [defendant] a number of instances over a interval of years.”  Id. at *7.  Second, like the opposite instances, McCoy concluded that Dr. Li had acquired “confidential info related to the litigation.”  Id. at *8.  Once more, the “contemporaneous paperwork” the defendants submitted have been “inherently extra dependable than Dr. Li’s recollections.”  Id. at *9.  Given the glacial tempo of the MDL the place these motions have been initially filed, there was no waiver.  Id. at *9-10.  Plaintiff’s you-didn’t-catch-me-fast-enough argument thus failed.  What actually carried the day in McCoy, nevertheless have been “issues of judicial integrity.”  Id. at *10.

[T]he Courtroom has critical considerations that any consequence apart from disqualification would have a deleterious impression on judicial integrity . . . [i]n gentle of the Courtroom’s findings {that a} confidential relationship existed between [defendant] and Dr. Li, and that confidential info related to this litigation was virtually actually exchanged with him[.  T]he Courtroom should endeavor to stop any look of an professional “switching sides” in the identical litigation and, advertently or not, probably disclosing info that would present the opposite facet with a litigation benefit.  Accordingly, the Courtroom finds, on steadiness, that disqualification [of Dr. Li] is the suitable plan of action.

McCoy, 2023 WL 4551081, at *10.  Accord McCoy v. DePuy Orthopaedics, Inc., 2023 WL 3829692, at *3 (S.D. Cal. June 5, 2023) (“the significance of defending the integrity of the judicial course of and stopping conflicts of curiosity” helps disqualification).

As we’ve already mentioned at size, the MDL that preceded these choices was itself characterised by questionable p-side conduct.  See In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Merchandise Legal responsibility Litigation, 888 F.3d 753, 784-92 (fifth Cir. 2018).  Sadly, the 4 choices we’ve simply detailed right here exhibit that their litigation techniques inimical to “judicial integrity” didn’t finish with the MDL.  However thankfully – not like the MDL itself – the district courts on remand have largely responded in an efficient vogue to such shenanigans, and have disqualified the turncoat professional Dr. Li.