Wrecked on a Li Shore – The Saga of a Turncoat Knowledgeable

In prescription medical product legal responsibility litigation, each side make investments loads of their knowledgeable witnesses.  Along with spending time, cash, and energy, we work out our authorized theories with our consultants, and share with them our views of the information, each good information and dangerous information.  Thus, when the opposite facet inveigles one among ours to change sides – often with the promise of much more cash for lots extra testimony – the outcome could be loads of collateral litigation.

We’ve blogged a couple of occasions earlier than about turncoat consultants, so the current choice in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our curiosity.  Then we found that Hawkins was solely the newest of a number of choices barring testimony by the identical turncoat knowledgeable – one Stephen Li – attributable to his prior employment with the identical defendant regarding product legal responsibility litigation involving the identical product (and different related merchandise, as properly).  See additionally King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); however see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023).  We notice that a few different choices (each precluding Dr. Li from testifying) apparently exist, however as a result of they’re both oral or beneath seal, we now have not seen and don’t talk about them.  The plaintiffs in these instances have been named Sheehy and England.

Hawkins gives a great description of what occurred and when:

• Early 1990 – protection counsel first engaged Dr. Li in reference to litigation “involving varied hip units”;
• Nineties – 2015 – Dr. Li was defendant’s “principal exterior guide and testifying knowledgeable” in hip implant litigation “significantly on instances involving polyethylene efficiency”;
• 2010 – Dr. Li first consulted by protection counsel regarding “MoM [metal-on-metal] hip alternative” litigation;
• 2010 – Dr. Li instructed protection counsel he had been “approached” by the opposite facet to “function an knowledgeable witness,” however had “decline[d]”’;
• October 2010 – Dr. Li mentioned a specific system and “MoM hips extra typically, as he anticipated [his client] may additionally wish to use Dr. Li as an knowledgeable within the litigation involving” the system within the Hawkins and different instances; “a lot of the dialogue was relevant to each . . . units”;
• 2011 – MoM implant discussions continued “periodically” with Dr. Li, principally coping with “issues particular” to litigation involving the system within the Hawkins and different instances;
• August 2011 – protection counsel met with Dr. Li “to deal with understanding and creating defenses to points being raised by Plaintiffs, and within the scientific and medical literature relating to” the system at challenge, “talk about[ing] intimately [various] protection methods . . . to reply to the evolving scientific and medical literature”;
• October 2013 – one other assembly with Dr. Li that “was very useful within the growth and assist of [the defendant’s] protection themes”;
• 2013 – 2015 – “occasional[]” communications between protection counsel and Dr. Li regarding litigation involving system in query;
• August 2015 – Dr. Li refused protection counsel’s request to “evaluation and critique” a plaintiffs’ knowledgeable’s report due to his “private, skilled and monetary relationships with” that knowledgeable;
• After August 2015 – Protection counsel “droop[ed] consulting with Dr. Li about MoM merchandise, however neither facet “formally terminated the consultancy.”

Hawkins, 2023 WL 7292164, at *2-3 (citations omitted).  All instructed, the defendant, via counsel, paid Dr. Li over $23,000 solely “for his knowledgeable providers regarding” the system at challenge.  Id. at *3.

Dr. Li, in fact, had his personal spin on what occurred, id. at *3, however his take was opposite to contemporaneous paperwork and thus not persuasive in Hawkins or another of the out there choices supporting his exclusion.  Even in Winkelmeyer, the place exclusion was denied, the choice was primarily based on a technicality.  2023 WL 2974480, at *1 (defendant “didn’t provide or provide to provide in its unique movement papers the paperwork it has now submitted for in digital camera evaluation”) (footnote omitted).  Each choice that thought of each side’ arguments totally has, on the deserves, held that the turncoat Dr. Li wouldn’t be allowed to testify.

As held in Hawkins, the “drastic measure” of knowledgeable disqualification was acceptable as a result of the defendant each had a “cheap” perception that “it had a confidential relationship with the knowledgeable” and the turncoat knowledgeable had “acquired confidential info related to the present litigation.”  2023 WL 7292164, at *4 (quotation omitted).  The shifting defendant in Hawkins glad this check with the above proof of “particular and unambiguous disclosures that if revealed would prejudice the celebration.”  Id. (quotation and citation marks omitted).

Hawkins held, first, {that a} confidential relationship had existed (via counsel) between the defendant and Dr. Li previous to his try to change sides.  There had been “three in-person conferences and different periodic discussions relating, not less than partially, to” litigation involving the system at challenge in Hawkins.  2023 WL 7292164, at *5.  Throughout these encounters they mentioned “science and engineering . . ., as properly authorized technique and defenses regarding litigation involving” the implant at challenge.  Id.  The proof thus “set up[ed] that protection litigation technique in regards to the [device at issue] was a transparent focus of [defense] counsel’s communications with Dr. Li,” id., for which he was compensated.  Id. at *6.  “It [wa]s additionally evident . . . that the connection between counsel and Dr. Li was undertaken in keeping with guidelines of ethics and confidentiality.”  Id.  Thus, it was “clear” that the defendant’s “counsel relied on Dr. Li to develop defenses and litigation technique in [this] litigation.”  Id.

The data mentioned with Dr. Li was additionally confidential – “readily recognized” as “legal professional work product” and “throughout the scope of the attorney-client privilege.”  Id. (citations and citation marks omitted).  The document contained “quite a few examples of the subjects that [defense counsel] mentioned with Dr. Li” that, in Hawkins, confirmed up in his knowledgeable report for the plaintiff.  Id.

[P]rior to rendering knowledgeable opinions for Plaintiffs, Dr. Li had already acquired, contributed to, and helped formulate the protection positions and methods that relate to the very factors and opinions he now renders for Plaintiffs on this litigation.

Hawkins, 2023 WL 7292164, at *6 (quotation and citation marks omitted).  Likewise, the in digital camera paperwork “replicate[ed] discussions of defensive litigation methods and responses to anticipated arguments from the plaintiffs’ consultants” that “qualif[ied] as legal professional work product.”  Id. at *7.

Given the character of each the contacts and the knowledge that was shared, Hawkins determined it was “honest” to preclude the turncoat Dr. Li from testifying.  “[G]iven quite a few different courts [that] have disqualified Dr. Li on the identical grounds,” “Plaintiffs ought to have recognized about Dr. Li’s long-standing relationship with [the defendant], together with his session . . . about [this] litigation.”  Id.  With this historical past, plaintiffs took a calculated danger in designating Dr. Li.  Id.  When that danger crapped out , it was hardly unfair to require them to designate one other knowledgeable.

What about these “different courts”?  Right here they’re in chronological order.  In King, the court docket additionally fond that “it was objectively cheap for Defendants to consider {that a} confidential relationship existed” with Dr. Li, given the identical historical past detailed in Hawkins.  2023 WL 5624710, at *7-8.  Dr. Li’s declare that he solely “met casually” with protection counsel “appear[ed] ludicrous given he billed for his time and was paid.”  Id. at *8.

The [same in camera] paperwork present that Dr. Li met with attorneys for Defendants for greater than dinner and drinks.  The paperwork [show] that Dr. Li was given entry to Defendants’ litigation methods, Dr. Li mentioned opposing consultants and learn how to cross-examine them, Dr. Li and Defendants recognized potential issues Defendants may face and methods to deal with them, and that Dr. Li and Defendants periodically reviewed new scientific articles which may have an effect on the litigation methods.

Id.  “[T]he integrity of the judicial course of” required Dr. Li’s exclusion as a result of “[a]llowing an knowledgeable to change sides is basically unfair.”  Id. at *9.

In Cannon, the check that “disqualification is warranted if the side-switching knowledgeable obtained privileged info from the primary celebration” was glad.  2023 WL 7477903, at *2.  First, the defendants had “an inexpensive foundation − perhaps even a compelling foundation − for believing they have been in a confidential relationship with Dr. Li.  Id. at *3 (emphasis unique).

Defendants engaged Dr. Li to help within the [current] litigation, had numerous conferences with him over a number of years, repeatedly shared work product with him, offered him with paperwork, paid him a considerable charge, requested him to not talk about the case with the opposing events, and acquired assurances from him that he would shield Defendants’ info.  All these elements level in direction of a confidential relationship.

Cannon, 2023 WL 7477903, at *3 (citations and citation marks omitted).  Given all this, the shortage of “a written retention/confidentiality settlement” didn’t matter.  Id.  Cannon additionally rejected Dr. Li’s “dinner and drinks” excuse.  His “reminiscence [wa]s just too unreliable to belief.”  Id. at 4.  There was “just one viable conclusion right here: Defendants had an inexpensive foundation for concluding they have been in a confidential relationship with Dr. Li earlier than Plaintiff retained him as an knowledgeable on this case.”  Id. at *5

After an intensive dialogue, Cannon additionally discovered that Dr. Li had acquired confidential info as a part of his engagement with the defendants.  Id. at *5-6.  “[A]ll” of the knowledge was, at minimal, work product, and “some” of it “additionally f[e]ll[] throughout the scope of the attorney-client privilege.”  Id. at *6 (quotation and citation marks omitted).  “[M]uch of the knowledge is related to this case as a result of it implicates lots of the points on which Dr. Li now opines in his knowledgeable report.”  Id.  On these information, “any final result aside from disqualification [of Dr. Li] would have a deleterious impression on judicial integrity.”  Id. at *6 n.7 (quotation and citation marks omitted).

Lastly, McCoy, 2023 WL 5624710, reached the identical conclusions.  First, it was “objectively cheap” for the defendants to consider that they had a confidential relationship with Dr. Li.  Id. at *6-7.  Dr. Li’s claims of “no recollection” have been rejected in mild of contemporaneous documentation, which demonstrated “seek the advice of[ations] with counsel for [defendant] a number of occasions over a interval of years.”  Id. at *7.  Second, like the opposite instances, McCoy concluded that Dr. Li had acquired “confidential info related to the litigation.”  Id. at *8.  Once more, the “contemporaneous paperwork” the defendants submitted have been “inherently extra dependable than Dr. Li’s recollections.”  Id. at *9.  Given the glacial tempo of the MDL the place these motions have been initially filed, there was no waiver.  Id. at *9-10.  Plaintiff’s you-didn’t-catch-me-fast-enough argument thus failed.  What actually carried the day in McCoy, nevertheless have been “concerns of judicial integrity.”  Id. at *10.

[T]he Courtroom has critical considerations that any final result aside from disqualification would have a deleterious impression on judicial integrity . . . [i]n mild of the Courtroom’s findings {that a} confidential relationship existed between [defendant] and Dr. Li, and that confidential info related to this litigation was virtually definitely exchanged with him[.  T]he Courtroom should endeavor to stop any look of an knowledgeable “switching sides” in the identical litigation and, advertently or not, probably disclosing info that would present the opposite facet with a litigation benefit.  Accordingly, the Courtroom finds, on steadiness, that disqualification [of Dr. Li] is the suitable plan of action.

McCoy, 2023 WL 4551081, at *10.  Accord McCoy v. DePuy Orthopaedics, Inc., 2023 WL 3829692, at *3 (S.D. Cal. June 5, 2023) (“the significance of defending the integrity of the judicial course of and stopping conflicts of curiosity” helps disqualification).

As we’ve already mentioned at size, the MDL that preceded these choices was itself characterised by questionable p-side conduct.  See In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Merchandise Legal responsibility Litigation, 888 F.3d 753, 784-92 (fifth Cir. 2018).  Sadly, the 4 choices we’ve simply detailed right here show that their litigation ways inimical to “judicial integrity” didn’t finish with the MDL.  However thankfully – not like the MDL itself – the district courts on remand have largely responded in an efficient vogue to such shenanigans, and have disqualified the turncoat knowledgeable Dr. Li.