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In re Taxotere (Docetaxel) Products Liability Litigation

United States District Court, E.D. Louisiana

November 1, 2018


         SECTION: “H” (5)



         Before the Court is Plaintiffs' Motion for Review of Discovery Order Authorizing Discovery from Consulting Experts Before Any Expert Witness Designation Is Due (Doc. 4542). For the following reasons, IT IS ORDERED that the Motion is GRANTED IN PART.


         In his Order and Reasons dated September 24, 2018, Magistrate Judge North ordered the Plaintiffs' Steering Committee (the “PSC”) to produce certain medical records to Sanofi.[1] This order followed Judge North's in camera review of the records at issue. Plaintiffs have resisted producing the records, claiming that they are protected by the consulting expert privilege pursuant to Federal Rule of Civil Procedure 26. According to Plaintiffs, the PSC facilitated the examinations by these doctors and obtained the records at issue solely for purposes of trial preparation.

         In his ruling, Judge North concluded that Rule 26 did not protect the records because the records were those of treating physicians rather than consulting experts. Judge North parsed the Plaintiff Fact Sheet (“PFS”) and emphasized that the PFS requires each plaintiff to identify any “healthcare provider” who has provided treatment to the plaintiff in the last eight years; the definition of “healthcare provider” is broad, encompassing any diagnostic laboratory, any facility that provides psychiatric or psychological care or advice, and any laboratory, psychiatrist, psychologist, or other persons or entities involved in the evaluation of the plaintiff.[2]Further, Judge North noted that the PFS expressly requires a plaintiff to identify and produce any pathology reports or results of biopsies performed in connection with the plaintiff's hair loss.[3]

         Judge North reviewed the records of three bellwether plaintiffs-Tanya Francis, Antoinette Durden, and Barbara Earnest. With regard to Tanya Francis, her PFS identified three physicians who treated her for the injuries alleged in this lawsuit-Dr. Martin Claiborne, Dr. Antonella Tosti, and Dr. Elizabeth Dimitri.[4]She identified Dr. Curtis Thompson as a doctor with whom she consulted for a “Dermatopathology Report.”[5] In response to Judge North's order, Francis submitted for in camera review the pathology report of Dr. Thompson and certain photos that relate to her scalp biopsy. Judge North ruled that both are discoverable. In his order, Judge North noted that Dr. Thompson's pathology report sets forth diagnoses related to Francis's alopecia claims.

         Plaintiff Antoinette Durden alleges, in addition to other injuries, that Defendants caused her to endure “past and future psychological counseling and therapy expenses” as well as “mental anguish, ” “severe and debilitating emotional distress, ” and “past, present, and future physical and mental pain, suffering, and discomfort.”[6] She seeks damages for “mental anguish and distress.”[7] In her PFS, uploaded to MDL Centrality on October 5, 2017, Durden conveyed that she had not sought treatment for her psychiatric or psychological condition.[8]

         On March 30, 2018, Durden sat for a psychiatric evaluation with Dr. John Thompson, who diagnosed her with a certain disorder and recommended therapy. On April 23, 2018, Durden sat for a psychological evaluation that included a series of procedures. The records from this evaluation show that the doctor similarly made diagnoses and recommendations. The records of these doctors make clear that they were retained by the PSC, they reviewed Durden's prior medical records as part of the exams, and they reported their findings directly to the PSC.

         Judge North noted that Durden's PFS is “silent in every respect” regarding the treatment and records at issue. He noted that she answered “no” to the question of whether she has had a scalp biopsy, and she did not reveal treatment by any of the doctors whose records were submitted to Judge North. Durden did, however, convey that she has received treatment for the injury alleged in this lawsuit, and she identified two treating physicians-Dr. Julie Mermilliod and Dr. Julie E. Martin.[9]

         Judge North noted that while Durden claims to have suffered “mental or emotional damages” and states that she has not been treated for the psychiatric or psychological condition of which she complains, the records submitted to Judge North indicate otherwise. Judge North noted that Durden has been seen and treated by a psychiatrist and psychologist who made diagnoses and recommendations for more treatment. Judge North wrote that because Durden placed her emotional and mental condition at issue, the records of these doctors must be produced. He further ruled that the photographs and the pathology report from Durden's March 26, 2018 punch biopsy must be produced to Sanofi.

         Like Durden, Earnest sat for a psychiatric evaluation with Dr. John Thompson on March 29, 2018, and she sat for a psychological evaluation on April 18, 2018. As Judge North noted, while her PFS is the same in all relevant aspects as Durden's, Earnest's PFS shows that she is not making a claim for mental or emotional damages. In light of this, Judge North ruled that Earnest need not produce any records from a psychiatrist or psychologist, but she must produce the photos and the pathology report she submitted to Judge North. Notably, in her PFS, Earnest conveyed that she has never received treatment for the injury alleged in this lawsuit, and, accordingly, she identified no treating physicians.[10]


         Federal Rule of Civil Procedure 72(a) addresses orders by magistrate judges on non-dispositive pretrial matters. Under the rule, a district judge must consider timely objections to such an order and “modify or set aside any part of the order that is clearly erroneous or is contrary to law.”[11] The “clearly erroneous” standard applies to the factual components of a magistrate judge's ruling, while the legal conclusions are reviewable de novo.[12] Under the “clearly erroneous” standard, a court must affirm a factual finding of the magistrate judge “unless ‘on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed.'”[13]


         As Judge North noted in his ruling, the “consulting expert privilege” stems from Rule 26 of the Federal Rules of Civil Procedure.[14] Under subsection 26(b)(4)(D), the rule provides:

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

         The Advisory Committee Notes make clear that Rule 26(b)(4) “does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.”[15] According to the Notes, “[s]uch an expert should be treated as an ordinary witness.”[16]

         Judge North provided two bases for his ruling. First, he held that the physicians at issue are treating physicians rather than consulting experts under Rule 26. Second, in the alternative, he held that, even if these physicians could be considered consulting experts, Sanofi has demonstrated that exceptional circumstances exist, per subsection 26(b)(4)(D)(ii). This Court reaches the same conclusion as Judge North and agrees that the records should be produced, but this Court relies on Rule 35 of the Federal Rules of Civil Procedure. However, this Court will nonetheless discuss Rule 26 in an effort to clarify for the parties when a person may be considered a consulting expert under Rule 26.

         Rule 26 prompts a court to distinguish between a “percipient witness who happens to be an expert” and “an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide opinion testimony.”[17]Rule 26 contemplates a consulting expert as one who is retained or specially employed for the purpose of offering expert opinion testimony.[18] Accordingly, the “distinguishing characteristic” between consulting expert opinions and other opinions is “whether the opinion is based on information the expert witness acquired through percipient observations or whether, as in ...

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