When Is an Expert Not an Expert?

The defense of a pharmaceutical or medical device product liability case often turns on the testimony of the core treating physicians. As defense counsel, we often are left holding our breath waiting to see how the physicians testify at their depositions or at trial. In addition to providing helpful factual testimony regarding their treatment of the plaintiff and the prescription of the drug or device at issue, the treating physicians may also hold opinions that support the defense, including opinions regarding causation, the adequacy of warnings, or the design of the product. Further, the treating physicians' testimony can lay the foundation for a dispositive motion based on the learned intermediary doctrine, which remains a strong and viable defense for pharmaceutical and medical device manufacturers. On the other hand, treating physicians may also be used by plaintiffs to support their liability allegations or to establish causation. It is, therefore, important for defense counsel to identify the key treating physicians early, to discover the potential scope of their testimony and opinions, and to try to work closely with their counsel.