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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.
The disclosure of the treating physicians under Rule 26 of the Federal Rules of Civil Procedure can determine the scope of the physician's testimony at trial. If the treating physician is not properly disclosed, a court may exclude or severely limit the physician's testimony. Thus, it is imperative that defense counsel be aware of current court decisions interpreting the disclosure of treating physicians under Rule 26 in their relevant jurisdiction. This will aid defense counsel both in developing strategy regarding their Rule 26 disclosures of treating physicians and in capitalizing on the opposing side's errors regarding disclosures of treating physicians. To that end, this article provides an analysis of federal court decisions over the past year that address Rule 26 disclosures of treating physicians.
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