Davis v. Dow Corning Corp. , 209 Mich. App. 287 ( 1995 )

209 Mich. App. 287 (1995) 530 N.W.2d 178

DAVIS
v.
DOW CORNING CORPORATION

Docket No. 165650.

Michigan Court of Appeals.

Submitted December 13, 1994, at Detroit. Decided March 7, 1995, at 9:30 A.M.

Charfoos & Christensen, P.C. (by J. Douglas Peters, L.S. Charfoos, and David R. Parker), for the plaintiffs.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Lamont E. Buffington and Robert D. Goldstein), for Dow Corning Corporation.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Richard A. Kitch and John P. Hessburg), for Inamed, Inc., and Minnesota Mining and Manufacturing.

Dykema Gossett (by Susan Artinian, Lori M. Silsbury, and Kathleen D. Hunt), for Baxter Healthcare Corporation.

Amicus Curiae:

Mark Brewer (Paul Denenfeld, of Counsel), for the ACLU Fund of Michigan.

Before: CORRIGAN, P.J., and CAVANAGH and L.C. ROOT,^[*] JJ.

PER CURIAM.

Plaintiffs appeal by leave granted from a protective order entered by the circuit court concerning ex parte discovery interviews with plaintiffs' treating physicians in this silicone gel breast implant products liability litigation. We affirm.

All silicone gel implant products liability actions pending in this state have been consolidated for purposes of pretrial discovery pursuant to Administrative Order No. 1993-2, 442 Mich. cix (1993).

On March 19, 1993, defendant implant manufacturers moved for an order permitting them to conduct ex parte interviews with plaintiffs' treating physicians. After hearing oral argument on May 7, 1993, the court ruled that defendants were entitled to interview the physicians, but allowed the parties to file additional briefs to address whether plaintiffs could contact the physicians to inform them that they had the right to decline any ex parte meetings. The court indicated that it would issue its ruling on May 21, 1993. Before that date, however, plaintiffs' counsel sent an open letter to the treating physicians requesting them not to speak with defense counsel unless plaintiffs' counsel was also present. That letter read as follows:

One or more attorneys representing breast implant manufacturer DOW [sic] Corning (or possibly other breast implant manufacturers) may attempt to contact you to arrange a meeting and discussion concerning your patient(s) who has received breast implants. I respectfully request that you choose not to speak with these attorneys unless I am present. I am the attorney representing the female recipients of breast implants.

There is no law that says you must speak with the defense attorneys. The defense attorneys may try to set up a private meeting because it has been their historical practice to try to use a patient's treating physician to dispute the medical claim — to place blame on anything other than their product.

As you are aware, the problems with breast implants are only now beginning to filter down to physician practitioners. The medical dangers of silicone and gel implants are being increasingly reported in the professional and lay press.

From the evidence developed to date, it is apparent that the silicone breast implant manufacturers misled America's physicians both about the safety and dangers of breast implants. They are continuing in their efforts in spite of the FDA ban on gel implants for nonclinical study reconstructive surgery and in spite of the pending investigation into the health effects of all implants with silicone envelopes. Indeed, at least two plastic surgeons have filed fraud actions against the gel implant manufacturers....

The Charfoos & Christensen law firm has not sued any of the physician implanters or other health care providers involved with problem [sic]. It is our belief that both physicians and patients were misled by the implant manufacturers.

You do not have to talk with the manufacturer attorneys unless you wish to. If you want to meet with the attorneys for the breast implant manufacturers, please ask that I be included in the meeting as I am the attorney representing your patient.

Thank you for your help. Of course, please call if you have any questions.

Plaintiffs' counsel also referred to the mass mailing letter in an interview that was published in the Detroit Legal News. In response to those actions, defendants on May 20, 1993, filed an emergency motion for a protective order.

At the May 21 hearing, the court issued its ruling with respect to the March 19 motion. It ruled that both plaintiffs' and defendants' representatives were permitted to conduct ex parte interviews with plaintiffs' treating physicians, provided that they specifically advised the physicians that they were free to grant or decline an ex parte interview. That ruling was incorporated into the court's June 1, 1993, order.

On June 2, 1993, the court ruled from the bench that it was improper for plaintiffs' counsel to request the physicians to decline interviews by defense counsel in the absence of counsel for their patients. In a written order dated June 10, 1993, the court granted defendants' May 20 motion for a protective order, requiring plaintiffs' counsel to send a court-drafted letter on the law firm's letter-head to the treating physicians informing them that they were not required to request that plaintiffs' counsel participate in the ex parte meetings and to publish the letter in the Detroit Legal News. That letter was to read as follows:

On May 12, 1993, I issued an open letter to Michigan physicians in the form of a press release. I also wrote to you on May 13, 1993 concerning pending breast implant litigation. Subsequently, the Wayne County Circuit Court, where all Michigan state court breast implant cases are pending, has entered an order, a copy of which is enclosed. As you will note, this order provides that defense attorneys are permitted to speak with physicians concerning any claim arising out of the silicone implant case filed by a patient who has signed a medical authorization for release of information. The Court has also ruled that such patients and their attorneys may not request the physician to speak with a defense attorney only if the patient's attorney is also permitted to be present.

Any request from my office contained in any prior communication to you, to the effect that you should choose not to speak to a breast implant manufacturer's attorney unless I am present, is hereby withdrawn, pursuant to the foregoing orders of the court.

Plaintiffs now appeal by leave granted from the June 10 order. The American Civil Liberties Union has filed, by leave granted, a brief amicus curiae, that addresses the First Amendment issue.

On appeal, plaintiffs first argue that the trial court erred in relying on Domako v Rowe, 438 Mich. 347; 475 NW2d 30 (1991), to support its ruling that defendants' attorneys were entitled to communicate ex parte with plaintiffs' treating physicians.^[1] Plaintiffs assert that the holding of that medical malpractice case is inapposite in the context of products liability litigation.

In Domako, our Supreme Court held that the defense counsel properly could conduct an ex parte interview with the plaintiff's treating physician once the physician-patient privilege had been waived. The Court noted that under MCL 600.2157; MSA 27A.2157, the physician-patient privilege is waived when a patient brings a malpractice or personal injury suit. Id. at 353-354. Likewise, under MCR 2.314(A)(1)(b), medical information is subject to discovery when the mental or physical condition of a party is in controversy. Id. at 354. Relying on those rules, the Court reasoned that once the patient voluntarily allows discovery of medical information, there are no sound legal or policy grounds for restricting access to the patient's physician. Id. at 361. In fact, prohibition of all ex parte interviews would be inconsistent with the purpose of providing equal access to relevant evidence and efficient, cost-effective litigation. Id. at 361-362.

The Court's reasoning in Domako is equally applicable in the context of the present case. Plaintiffs have brought personal injury claims and have placed their physical conditions in controversy. Nothing in the Court's reasoning in Domako regarding the propriety of ex parte interviews with treating physicians is tied in any manner to the unique features of medical malpractice cases. Instead, the Domako decision is based upon this state's broad policy favoring far-reaching, open, and effective discovery practice, applicable in all types of civil litigation, and the conclusion that ex parte discovery interviews appear to advance those well-recognized policy goals. Id. at 359-362. Indeed, the Domako decision cites a products liability case, Doe v Eli Lilly & Co, Inc, 99 FRD 126 (D DC, 1982), as authority supporting its recognition of ex parte interviews as a proper method of discovery. Domako, supra at 361; see also G P Enterprises, Inc v Jackson Nat'l Life Ins Co, 202 Mich. App. 557, 567-568; 509 NW2d 780 (1993) (applying the Domako rule outside the medical malpractice context).

Consequently, the trial court properly concluded that defendants were entitled to meet ex parte with plaintiffs' treating physicians.

Next, plaintiffs argue that the June 10 order violates their free speech rights under the First Amendment of the United States Constitution. We disagree.

In Gentile v State Bar of Nevada, 501 U.S. 1030, 1072-1073; 111 S. Ct. 2720; 115 L. Ed. 2d 888 (1991), the United States Supreme Court, citing Seattle Times Co v Rhinehart, 467 U.S. 20; 104 S. Ct. 2199; 81 L. Ed. 2d 17 (1984), determined that the speech of lawyers who represent clients in pending cases may, consistent with the First Amendment, be regulated under a less demanding standard than the "clear and present danger" standard established for regulation of the press. The speech of those participating before the courts can be limited to a greater extent than that of those who are strangers to the litigation. Moreover, "[a]n attorney may not, by speech or by other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal." Gentile, supra at 1071.

In the instant case, the court found that the conduct of plaintiffs' counsel in issuing a press release and an open letter to the treating physicians was in violation of MRPC 3.4(f), which prohibits an attorney from asking a person other than a client to refrain from voluntarily providing relevant information to another party. Additionally, by failing to await and abide by the trial court's ruling, counsel exceeded his right to preserve his point for appeal. See Zal v Steppe, 968 F2d 924, 928 (CA 9, 1992).

Plaintiffs' assertion that the protective order forbids both patients and their attorneys from discussing all potential issues in this case with anyone is clearly incorrect. The order imposes no such blanket restriction. At most, it simply prohibits plaintiffs or their attorneys from requesting treating physicians to refuse to speak with defense counsel in the absence of plaintiffs' attorney. Nothing in the order prevents patients or their counsel from discussing any other issues involved in the case with anyone, including treating physicians.

The order was drawn narrowly to remedy the ethical violations committed by plaintiffs' counsel. Compare Upjohn Co v Aetna Casualty & Surety Co, 768 F Supp 1186, 1216-1217 (WD Mich, 1990) (magistrate properly required the defendant, which had violated ethical rules by having its investigators improperly question the plaintiff's former employees, to deliver a letter to former employees identifying the interviewer and the interviewer's purpose and indicating the reader's right to refuse to be interviewed). It was an appropriate means of ensuring that neither plaintiffs nor their attorneys were permitted to influence the treating physicians to refuse to engage in any ex parte interviews, thereby rendering meaningless the right to seek such interviews that was recognized in Domako.

We are unpersuaded by the argument of amicus curiae that the order impermissibly compels plaintiffs' counsel to speak. First, plaintiffs' counsel is not being forced to subscribe to a political or ideological belief to which he objects. See, e.g., Abood v Detroit Bd of Ed, 431 U.S. 209; 97 S. Ct. 1782; 52 L. Ed. 2d 261 (1977); Wooley v Maynard, 430 U.S. 705; 97 S. Ct. 1428; 51 L. Ed. 2d 752 (1977). Secondly, as we have explained above, it is not a violation of the First Amendment to impose certain restrictions on attorney speech in the context of litigation and in order to remedy ethical violations. Gentile, supra; Seattle Times, supra at 32, n 18. Gentile recognized that membership in the bar is a privilege that comes with conditions. 501 U.S. 1066. The Court observed that "``[o]bedience to ethical precepts may require abstention from what, in other circumstances, would be constitutionally protected speech.'" Id. at 1071, quoting In Re Sawyer, 360 U.S. 622, 646-647; 79 S. Ct. 1376; 3 L. Ed. 2d 1473 (1959) (STEWART, J., concurring).

Accordingly, the trial court properly entered its protective order.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that, contrary to defendants' assertion, this issue was properly preserved for review because it was raised in plaintiffs' brief in support of emergency application for leave to appeal. MCR 7.205(D) (4); see Giddings v Detroit, 178 Mich. App. 749, 759; 444 NW2d 242 (1989).