A Case Study on the Importance of Forum Selection in Mass Tort Litigation

All attorneys eventually come to recognize the vital importance of choice of forum in complex litigation cases. In mass tort litigation, forum considerations are no less significant, and plaintiffs’ counsel look to conflict of laws issues to determine whether a particular forum is hospitable on core liability and damages issues. However, an often overlooked consideration is a prospective forum’s discovery standards and practices. Those discovery rules and practices can dictate the type and quality of evidence that will be discovered and used in that case. As such, the choice of forum determination is especially critical in mass tort actions, where a plaintiff’s counsel sometimes has the choice to file in a state court mass tort (or other) proceeding or in a federal court multi-district litigation (“MDL”).

New Jersey Superior Court Judge Jessica R. Mayer recently issued an opinion in the Zometa/Aredia mass tort proceedings which demonstrates the significance of a plaintiff’s choice of forum. On September 4, 2009, counsel for the defendant, Novartis Pharmaceuticals Corporation, filed a motion to engage in substantive ex parte interviews with the plaintiffs’ treating physicians. Novartis argued that such contacts were expressly permitted in the Aredia/Zometa MDL, pending in the United States District Court for the Middle District of Tennessee. Novartis pointed out that, 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). Novartis contended that, by engaging in ex parte interviews with the plaintiffs’ treating physicians, the company would be able to distinguish the medical providers whose testimony was essential to the plaintiffs’ claims from those who provided merely ancillary care, thereby allowing it to narrow the number of physicians to depose and concentrate resources on physicians whose depositions would provide better “fact gathering” for trial.