Overcoming tensions between drug/device defendants and treating physicians.

• Author: Yates, Pamela
• Position: Reprinted from joint newsletter of Drug, Device and Biotechnology and Medical Defense and Health Law Committees, February 2014 - Reprint

This article originally appeared in February 2014 as a joint newsletter of the Drug, Device and Biotechnology and Medical Defense and Health Law Committees.

AS any attorney who has participated in multi-party litigation knows, the risk for finger pointing and infighting among co-defendants looms large. This is especially true in the medical malpractice and product liability realm where doctors and manufacturers can be pitted against each other either by savvy plaintiffs counsel or through their own desire for self-preservation. Additionally, divergent interests between a plaintiffs treating physicians (who are also often defendants) and the manufacturer defendants almost always benefits the plaintiff. While conventional wisdom is that the defendants should make every effort to present a unified defense, such collaboration is usually easier said than done.

This article will briefly outline, from both the physician and the manufacturer's perspective, the problems often encountered in product liability/medical malpractice litigation and some suggestions for minimizing the inevitable conflicts.

1. Bickering Benefits No One (Except The Plaintiff)

   In our fervor to aggressively defend our clients, defense lawyers sometimes find themselves intentionally or inadvertently pointing fingers at co-defendants in defense of their case. It is easy to succumb to this approach. For instance, the client or insurer may be pushing for it after having been burned by a co-defendant in prior litigation. Or, counsel may suspect the codefendant is already plotting to engage in the same tactic and does not want to be caught unprepared. In other situations, counsel might (mistakenly or not) believe the plaintiff will show leniency to one defendant in exchange for providing favorable testimony against the co-defendants.

   Regardless of the motivation, finger pointing inevitably leads to the old adage --you might win the battle, but you'll lose the war. While shifting blame or offering harmful testimony against a co-defendant might, in the short term, advance your client's cause, it potentially hurts all defendants in the end. A fractionalized defense scenario where co-defendants are blaming each other results in nothing more than each defendant acting as a plaintiff with regard to the other defendants. Rather than having to address and unravel the defendants' defenses himself, plaintiff s counsel can sit back and reap the benefits as the co-defendants pick each other apart. Such discord among the defendants muddies the trial, creates confusion for jurors, and can ultimately drive up the setdement value or a verdict. In contrast, if the physician and manufacturing defendant work together, the burden is placed back on the plaintiff (where it rightfully belongs) to actually establish liability and causation in the case.

2. Problems Encountered From The Doctor Defendant's Perspective

   In order to defend a plaintiff's medical malpractice claim, the physician defendant needs to demonstrate that the decision to use a device or drug, or the manner in which to use the device or drug, met the applicable standard of care. Expert witnesses are commonly employed to develop this defense. Normally, defense counsel only has to worry about the expert witnesses identified by the plaintiff testifying against their physician client. Unfortunately, in litigation involving a drug or device manufacturer, that is not always the case. Below are some examples of situations in which the co-defendant manufacturer either inadvertently or, at times, intentionally creates conflict with the physician defendant through its witnesses.

   1. The Ill-Prepared Corporate Representative

      Innocent actions on the part of the manufacturer can just as easily create problems for a physician defendant as would aggressive and intentional finger pointing. This commonly arises during the deposition of the manufacturer's 30(b)(5) or (6) representative. If counsel for the manufacturer has only equipped the witness to defend their own device/drug and has not substantively prepared the witness on how to handle or deflect standard of care related questions, the physician's counsel will have no choice but to treat the witness as hostile. Take, for instance, the following summary of an actual scenario encountered by defense counsel:

      Defendant physician was a board certified general surgeon. In performing the excision of a facial lesion on a patient, she utilized a new electrocautery device. During the procedure, the electrical current arced from the tip of the device to a gauze pad placed on the patient's face, causing an operative fire which resulted in second and third degree burns to the patient. A 30(b)(6) representative for the device manufacturer was identified and deposed by the plaintiff. The manufacturer's corporate representative was not well-prepared regarding the case against the physician and gave several poor answers which had the net effect of insinuating that the doctor misused the device and failed to follow the manufacturer's warnings. As a result of these equivocal answers, counsel for the physician was forced to aggressively cross-examine the representative. The ill-prepared representative got even further turned around and eventually ended up testifying that the company's fire warnings were ambiguous for...