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Plaintiffs’ Counsel Contacted a Mirena Doctor Violating Court Orders

— March 2, 2016

According to the letter, plaintiffs’ counsel contacted a Mirena doctor violating court orders. Judge Seibel had previously issued a Case Management Order (CMO 21) that prohibited plaintiffs’ attorneys “from engaging in ex parte discussions with plaintiffs’ providers [doctors] concerning liability issues or theories.”

Bayer’s attorneys in the Mirena IUD case (In re Mirena IUD Products Liability Litigation, 13-MD-2434, 13-MC-2434) recently sent a letter to Judge Cathy Seibel who is overseeing the multi-district litigation (MDL). According to the letter, plaintiffs’ counsel contacted a Mirena doctor violating court orders. Judge Seibel had previously issued a Case Management Order (CMO 21) that prohibited plaintiffs’ attorneys “from engaging in ex parte discussions with plaintiffs’ providers [doctors] concerning liability issues or theories.”

Black’s Law Dictionary defines ex parte as:

“Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested.”

In plain English, this means that one party, in this case the plaintiffs’ lawyer, did an end run around the system and had a private discussion with a doctor involved in the trial. This was done solely for the benefit of the plaintiffs and no notice was given to the defendants’ attorneys. This also means that the Lead Counsel for the Plaintiffs’ Steering Committee, Matthew McCauley, the one who did the end run, directly violated Judge Seibel’s CMO 21.

Bayer’s response to this violation was a request to Judge Seibel to order plaintiffs’ lawyers to “certify their compliance or non-compliance with the Court’s orders.” This request has special significance in the progression of the MDL. In such litigation, certain cases are chosen for Bellwether trials. These trials serve the purpose of discovering how juries may react to testimony, evidence and accusations brought before them that also represent those found in other cases in the MDL. The disposition of these Bellwether cases isn’t binding on other cases in the MDL, but they often get the parties discussing settlements, especially when the Bellwether verdicts are in the plaintiffs’ favor.

Another set of Bellwether cases, the Second Disposition Pool (SDP), is set to be chosen by March 4, 2016. Due to plaintiffs’ attorney’s violation of CMO 21, defendants have the right to move to have certain cases excluded from the SDP. There are three cases in question: Miller, Hayes and Danley. Certainly, Miller is the case that most concerns the defendants, as it’s the case in which the plaintiffs’ attorney violated CMO 21.

Here is the violation of CMO 21:

“[O]n February 17, 2016, a treating physician in the SDP case Miller et al. v. Bayer HealthCare Pharmaceuticals Inc., testified that prior to her deposition, Ms. Miller’s counsel Matthew McCauley spoke to her about his failure to warn theory of this litigation.

Q: Did you talk at any time with Mr. McCauley about sort of the theories of the litigation or the issues that were at hand in the litigation or in the case?

A: Very briefly.

Q: What is it – do you have an understanding of what the allegations are?

A: I think I do. If that’s fair to say.

Q: Sure. What do you think they are?

A: So what we discussed was that the particular matter in this case was related to the possibility that the IUD had migrated at some point after the insertion and that to date the literature for Mirena doesn’t include the possible risk of migration after insertion.  And so that was kind of the premise of the case.

Q: In the conversation you had with Mr. McCauley, did he provide his theory that there was a late perforation not related to insertion?

A: I think he said that they felt it was a possibility.”

This is a clear violation of CMO 21 as McCauley told plaintiff Miller’s doctor of his theory that Mirena “migrated as some point after the insertion” as well as informed her of his failure to warn theory re: the label not including “the possible risk of migration after insertion.”

As is often the case in litigation (it is, after all, an adversarial process), there is a certain amount of “we want to do ‘X,’ but we don’t want you to do it.” So it is with this case.

In April 2014, Bayer’s attorneys made a motion to be allowed to have their own ex parte chats with the plaintiffs’ treating doctors. If denied that, they moved to limit plaintiffs’ attorneys’ ability to have such ex parte chats with plaintiffs’ doctors in order “to prevent an unfair advantage by Plaintiffs lobbying their theories of liability and causation upon the treating physicians during the ex parte contact.” As though, the defendants’ ex parte conversations wouldn’t have conferred any unfair advantage. As I said, it’s an adversarial process and each side jockeys for whatever advantage it can get, regardless of the apparent hypocrisy attendant in such machinations.

Judge Cathy Seibel, photo credit U.S. District Court, SDNY
Judge Cathy Seibel, photo credit U.S. District Court, SDNY

Judge Seibel basically said, “No,” to Bayer’s attorneys’ motion for ex parte chats. However, she did grant them their alternative motion: CMO 21, which said, “No,” to plaintiffs’ attorneys’ doing the same thing. In her order, Judge Seibel explained to both parties that the ban on ex parte communications was to “mitigate Defendants’ concerns that Plaintiffs will sandbag doctors” as well as to “level the playing field” through keeping plaintiffs from “woodshed[ing]” treating physicians.

Admittedly, one had to turn to both Blacks’ Law Dictionary and Google for clarification on Judge Seibel’s use of the terms “sandbagging” and “woodshedding.” Here are the pertinent definitions:

Sandbagging (Black’s Law):

“A trial lawyer’s remaining silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem. Such a tactic does not usually preserve the issue for appeal because objections must be made promptly to alert the trial judge of the possible error.”

Woodshedding (

“Slang. To practice a musical instrument assiduously and with a specific goal in mind.”

Sandbagging, it seems, is an underhanded attempt to create a non-level playing field and Judge Seibel was having none of it. One assumes, from the definition of “woodshedding” that it refers to continually working with the treating doctors to the point that they are more in agreement with the party doing the “woodshedding” than with the actual facts of the case. Judge Seibel had no use for that concept, either.

Hence, the request by Bayer’s attorneys to assess the McCauley’s “woodshedding” attempts with plaintiff Miller’s treating doctor. The defendants asked the judge to order the lawyers for the initial disposition pool (IDP – the first set of Bellwether cases) for plaintiffs Danley and Hayes, as well as for all SDP plaintiffs to either:

  1. Certify that they complied with CMO 21; or
  2. If they violated it, to file a declaration stating
    1. The names of all treating providers with whom they’d had ex parte communications,
    2. As much detail as possible regarding the subject matter of those ex parte communications, and
    3. All documents discussed and disclosed during the ex parte communications.

Judge Seibel issued her answer to the defendants’ request on February 23, 2016. It is reproduced in its entirety below.

“Based on the parties’ submissions, it seems that Mr. McCauley (inadvertently or not) violated CMO 21 in his ex parte conversation with Dr. Archibald.  It is hard to imagine what other conclusion can be drawn from Dr. Archibald’s testimony that her understanding, based on conversation with Mr. McCauley, is that the “premise” of Plaintiff Miller’s case is that the Mirena migrated after insertion and that the Mirena literature does not include that possibility as a risk. While it is fair game for Plaintiff’s counsel to discuss the doctor’s treatment of the Plaintiff, the doctor’s views (if any) regarding when her patient’s perforation or migration occurred, and her understanding of the Mirena warnings, it is not fair game to let the doctor know in advance that Plaintiff’s counsel is taking the position in court that the patient suffered a post-insertion injury about which Defendant failed to warn.

I do not believe, however, that there is a pattern of “woodshedding” violations that would justify requiring the requested certification from all counsel in the SDP, Hayes and Danley cases. I did not find that Mr. Childers [attorney for plaintiff Violet Adams] violated CMO 21’s “woodshedding” provision, and so widespread relief seems premature.  I will, however, require that all Plaintiffs’ counsel in the Miller case provide the requested certification as to Miller and, if they are counsel in Hayes, Danley or any SDP case, as to those cases as well. The certification shall be provided to Defendants’ counsel by February 28, 2016.

The Plaintiffs’ leadership is directed to alert all Plaintiffs’ counsel to the possibility that discovery of additional violations may result in the striking of cases from the IDP or SDP and/or modification of CMO 21.

The Clerk of Court is respectfully directed to docket this endorsement in 13-CV-1168, 13-MD-2434, and 13- MC-2434.”

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