In re Benicar (Olmesartan) Products Liability Litigation

319 F.R.D. 139, 97 Fed. R. Serv. 3d 111, 2017 WL 970263, 2017 U.S. Dist. LEXIS 35992
CourtDistrict Court, D. New Jersey
DecidedMarch 13, 2017
DocketMaster Docket No. 15-2606 (RBK/JS)
StatusPublished
Cited by3 cases

This text of 319 F.R.D. 139 (In re Benicar (Olmesartan) Products Liability Litigation) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Benicar (Olmesartan) Products Liability Litigation, 319 F.R.D. 139, 97 Fed. R. Serv. 3d 111, 2017 WL 970263, 2017 U.S. Dist. LEXIS 35992 (D.N.J. 2017).

Opinion

[140]*140MEMORANDUM OPINION AND ORDER

JOEL SCHNEIDER, United States Magistrate Judge

The discovery issue before the Court is whether two of plaintiffs’ medical experts must produce redacted copies of patient medical records they considered in forming their expert opinions.1 The Court received the parties’ written submissions and held oral argument on March 8, 2017. For the reasons to be discussed, plaintiffs will be Ordered to produce the requested records.

Background

In brief summary, this is an approximate 1800 case Multidistriet Litigation involving defendants’ olmesartan prescription drugs. Plaintiffs allege the drugs caused the sprue-like enteropathy symptoms they complain about. In accordance with the Court’s schedule, plaintiffs recently produced their general and specific causation expert reports. The two experts at issue, Dr. Benjamin Lebwohl and Dr. Stephen M. Lagaña, were recently deposed and confirmed they considered certain patient medical records in reaching their opinions.2 Plaintiffs object to producing the records.

Discussion

The resolution of this discovery dispute is dictated by Rule 26(a)(2)(B)(ii) which provides that, “the facts or data considered by the [expert] witness” in forming his/her opinions must be disclosed. The advisory committee note accompanying the 2010 amendments to Rule 26(a)(2)(B) explains that:

Rule 26(a)(2)(B)(ii) is amended to provide that disclosure include all “facts or data considered by the witness in forming” the opinions to be offered ... [.]
[[Image here]]
The refocus of disclosure on “facts or data” is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the intention is that “facts or data” be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data “considered” by the expert in forming the opinions to be expressed, not only those relied upon by the expert. (Emphasis supplied).3

A majority of courts have taken the “pro-discovery” position that “pursuant to Rule 26(a)(2)(B), a party must disclose all information provided to its testifying expert for consideration in the expert’s report[.]” Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 463 (E.D. Pa. 2005); F.T.C. v. Lane-Labs, USA, Inc., C.A. No. 00-CV-3174 [141]*141(DMC), 2008 WL 4003927, at *1 (D.N.J. Aug. 25, 2008) (“[although the ease law is not uniform, the overwhelming majority of courts have required the production of any information considered by a testifying expert in reaching his or her opinion, regardless of any privilege that may otherwise exist”); Beachfront North Condominium Association, Inc. v. Lexington Ins. Co., C.A. No. 14-6706 (RKB/JS), 2015 WL 4663429, at *3 (D.N.J. Aug. 5, 2015)(recon. den. March 9, 2016); see also Regional Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006)(finding that Rule 26 creates a bright-line rule requiring disclosure of all documents provided to testifying experts); Dyson Technology Ltd. v. Maytag Corp., 241 F.R.D. 247, 251 (D. Del. 2007)(holding that a party is entitled to production of information considered by the trial expert in formulating his/ her opinion, including all information he or she reviewed, reflected upon, read and/or used). “[T]his bright-line rule serves important policy considerations, including the facilitation of effective cross-examination and the resolution of uncertainty as to the discovera-bility of documentation divulged to a testifying expert.” Synthes Spine, 232 F.R.D. at 464. The Synthes Spine decision also applied a broad definition of “considered” in Rule 26(a)(2)(B) by requiring the disclosure of all information a testifying expert “generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if such information is ultimately rejected.” Id. at 463.

The Court adopts the majority view regarding expert disclosure requirements under Rule 26(a)(2)(B). The Court also adopts the definition of “considered” from Synthes Spine. These holdings comport with the comment to Rule 26 and are consistent with the language and spirit of the Rule. Given the Court’s ruling the record in the case compels the conclusion that the medical records considered by plaintiffs’ experts must be produced.

The record is clear that Drs. Lebwohl and Lagaña “considered” the referenced patient medical records in reaching their expert opinions. Dr. Lebwohl makes this clear at p. 6 of his expert report wherein he wrote, “I reviewed the charts of our most treatment-resistant patients[.]” He also confirmed at his deposition that he relied upon the charts in reaching his ultimate conclusion and opinion. See February 10, 2017 Transcript (“Tr.”) at 184:17 to 186:18. In fact, Dr. Lebwohl testified the chart review “confirmed [his] opinion.” Id. at 186:14-18. Similarly, Dr. Lagaña testified that as part of his investigation into olmesartan enteropathy he reviewed the charts of sixteen patients who were exposed to olmesartan who were classified as having seronegative celiac disease. February 7, 2017 Tr. at 24:16 to 26:6. Dr. Lagaña confirmed that his review “contributed to [his] thinking and it seemed to [him] well beyond what you could imagine would be a chance association.” Id. at 26:16 to 27:9.4

Plaintiffs’ arguments in opposition to producing the requested medical records are not convincing. Plaintiffs first argue the medical records “do not belong” to their experts, they do not own or control the records, and they do not have the right to produce the records. March 2, 2017 LB at 2. This broad statement is not substantiated by any competent evidence but instead is merely a conclusory statement in plaintiffs letter brief. Nonetheless, since the experts were apparently able to easily access the requested records to review them, it is likely they have “possession, custody or control” of the records.5 Federal courts construe “control” broadly. Haskins v. First American Title Ins. Co., [142]*142C.A. No. 10-5044 (RMB/JS), 2012 WL 5183908, at *1 (D.N.J. Oct. 18, 2012). Control exists where a party has the legal right or ability to obtain the documents from another source upon demand. Id. (citation omitted). It appeal’s from the record in the case that plaintiffs’ experts have the ability to obtain the medical records they reviewed.

Plaintiffs also argue it would be burdensome to identify, collect, redact and produce the requested records. However, plaintiffs did not provide any proof to support this objection. This being the case, plaintiffs’ burdensome and proportionality objections are rejected. Younes, 312 F.R.D. at 704 (citing eases)(broad-based, non-specific and general objections are meaningless and will be disregarded). Moreover, plaintiffs are concerned a ruling in defendants’ favor may require testifying experts to produce hundreds or thousands of patient records. Plaintiffs’ concern is misguided. Here, plaintiffs’ experts testified they considered a discrete, identifiable and manageable number of records. Dr. Lebwohl only looked at charts of the most treatment-resistant patients. See Report at 6.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
319 F.R.D. 139, 97 Fed. R. Serv. 3d 111, 2017 WL 970263, 2017 U.S. Dist. LEXIS 35992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-benicar-olmesartan-products-liability-litigation-njd-2017.