Plaintiffs from across the country filed suit in New Jersey against Johnson & Johnson and Ethicon, Inc., alleging they suffered injuries caused by defendants’ medical products. The cases were consolidated into a mass tort action. The trial court issued a pre-trial order barring defendants from consulting with, or retaining as an expert witness, any physician who had at any time treated a plaintiff in the case.

As an amici, NJCJI filed a brief encouraging the appellate court to overturn the trial court’s order. Forbidding physicians who had even the most minimal contact with a plaintiff from serving as an expert for the defense greatly diminishes the pool of potential experts able and willing to testify in court, particularly in mass tort cases. Because of the critical role that physician expert testimony plays in pharmaceutical litigation, and because pharmaceutical litigation is so prevalent in New Jersey, this issue has the potential to impact thousands of cases.

The Appellate Division reversed the trial court’s order, holding that a court cannot place a higher value on the “litigation interests” of one patient than it does on a physician’s expert opinion about the treatment of all patients in general. Both sides of a dispute must have access to the most qualified physicians who can serve as experts. Judge Sabatino wrote a separate concurring opinion.