YAZ®, Yasmin® and Ocella® are the subject of mass tort litigation treatment in the state courts of New Jersey and Pennsylvania, and MDL treatment in the federal courts, Southern District of Illinois. In many cases, based on the state of residence of the plaintiff, plaintiff’s counsel must make a determination as to which forum would be best for the plaintiff’s case. There are numerous factors that must be weighed in making this determination.

Usually, an attorney will look first to conflict of laws issues to determine whether a particular forum is most beneficial for liability and damages purposes. However, a many times overlooked consideration is a forum’s respective discovery standards and practices. Such discovery standards and practices dictate the amount of time and resources that a case will command and, even more importantly, the type and quality of evidence that will be produced in that case. As such, the choice of forum determination is especially critical in mass tort actions, where the plaintiff’s counsel must frequently decide whether to file in a state court mass tort or in a federal court MDL. 

For example, there is the fundamental question of whether a defendant’s counsel is permitted to engage in informal and largely private (“ex parte”) interviews of the plaintiff’s treating physicians. Under N.J.S.A. 2A:84A-22.4, the New Jersey physician-patient privilege is waived by a plaintiff upon initiating a personal injury suit, which places his medical condition at issue. Moreover, ex parte contacts with a plaintiff’s treating physicians are expressly permitted as a means of efficiently engaging in discovery and trial preparation. See Stempler v. Speidell, 100 N.J. 368 (1985). However, New Jersey Superior Court Judge Jessica R. Mayer recently issued an opinion in the Aredia/Zometa mass tort, Gaus v. Novartis Pharmaceuticals Corp., Docket No. L-7014-07MT (In re Aredia and Zometa, Case No. 278), holding that, while ex parte interviews are permitted under Stempler, the New Jersey Supreme Court clearly noted that ex parte contacts are not mandatory in all cases. Further, in “extreme cases” Stempler vests the trial court with discretion to prohibit the use of ex parte contacts, explaining that, in certain instances, the trial court may require depositions in accordance with formal discovery rules.

Judge Mayer found that the litany of potential issues of contention that will emanate from the ex parte interviews are virtually boundless. These issues include consent disputes, HIPAA authorization disputes and even the rights of the physicians to have their own counsel present. Considering the number of cases in a mass tort litigation, the court posited that it lacks sufficient judicial resources and time to deal with the continuous motions that the parties will inevitably file with regard to these issues. Thus, the court found that the alleged efficiency of allowing Stempler interviews does not outweigh the impracticality of doing so in these mass tort cases.

However, the court found that, in the interests of fairness, neither party is permitted to engage in ex parte contacts with the plaintiffs’ treating physicians or influence the deposition or trial testimony of the plaintiffs’ treating physicians. Thus, all parties shall proceed by way of formal deposition of the plaintiffs’ treating physicians.

It would be difficult to understate the significance of these types of conflict of laws rulings with regard to both timing and expense, as well as the effect on the evidence that will naturally be at the heart of each of the mass tort cases. Only through the careful consideration of these and many other state and federal conflict of laws issues, can an informed forum selection choice be made.