New Petrillo Case - April 5, 2005

As you may know, under Petrillo v. Syntax Laboratories, defense counsel may only communicate with a plaintiff's treating physician by formal discovery (i.e., depositions). In Moss v. Amira, defense counsel deposed a treating physician and prior to the treating physician's evidence deposition, defense counsel sent the physician a letter and 213(f)(3) disclosures (i.e., expert disclosures) which outlined what defense counsel anticipated the treating physician would testify to. Plaintiff's counsel sought to bar the physician's testimony claiming that defense counsel's communications violated Petrillo. The trial court did not bar the physician's testimony reasoning the communications did not rise to the level of a Petrillo violation. The Appellate Court reversed, and held the communications were ex parte communications with a treating physician in violation of Petrillo and ordered the trial court to bar the treating physician's testimony on remand.Bottom Line: providing a treating physician with 213(f)(3) disclosures which outline what defense counsel anticipates the treating physician will testify to is a Petrillo violation. If defense counsel communicates, either verbally or in writing, with a treating physician about any substantive matters, defense counsel should anticipate that the treating physician will be barred from testifying as a sanction for the Petrillo violation.