United States District Court, S.D. Indiana, Indianapolis Division
In Re COOK MEDICAL, INC., IVC FILTERS MARKETING, SALES PRACTICES AND PRODUCT LIABILITY LITIGATION This Document Relates to Tonya Brand, 114-cv-06018-RLY-TAB
ENTRY ON THE COOK DEFENDANTS' MOTION TO EXCLUDE
SPECIFIC TESTIMONY OF TREATING PHYSICIANS
RICHARD L. YOUNG, JUDGE
moves to exclude certain testimony of non-retained experts
Dr. Mark Rheudasil and Dr. Thomas Morrison. Dr. Rheudasil is
the vascular surgeon who inserted and removed Plaintiff's
IVC filter. Dr. Morrison is the neurosurgeon who performed
Plaintiff's ALIF surgery immediately after Dr. Rheudasil
inserted the filter and provided exposure-i.e., moved the IVC
and abdominal contents aside to gain access to
Plaintiff's spine. Cook argues that Dr. Rheudasil and Dr.
Morrison impermissibly opine on the cause(s) of
Plaintiff's filter failure. The court, having read and
reviewed the parties' submissions, the designated
evidence, and the applicable law now finds Cook's motion
to exclude should be GRANTED.
must disclose the identity of any expert witness it intends
to use at trial. Fed.R.Civ.P. 26(a)(2)(A). That disclosure
must include a full written report “if the witness is
one retained or specially employed to provide expert
testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B). The
2010 Amendment to Rule 26 added 26(a)(2)(C), stating that
non-retained witnesses who happen to be experts must provide
summary disclosures. A summary disclosure must state the
subject matter on which the witness is expected to present
evidence and a summary of the facts and opinions to which the
witness will testify. Fed.R.Civ.P. 26(a)(2)(C).
treating physician can provide an expert opinion without
submitting a [Rule 26(a)(2)(B)] written report if the
physician's opinion was formed during the course of the
physician's treatment, and not in preparation for
trial.” E.E.O.C. v. AutoZone, Inc., 707 F.3d
824, 833 (7th Cir. 2013) (citing Meyers v.
Nat'l R.R. Passenger Corp., 619 F.3d 729,
734-35 (7th Cir. 2010)). Such opinions may include opinions
on causation if he formed such opinions during the course of
treatment. See id. In Meyers, the Seventh
[A] treating physician who is offered to provide expert
testimony as to the cause of the plaintiff's injury,
but who did not make that determination in the course of
providing treatment, should be deemed to be one
“retained or specially employed to provide expert
testimony in the case, ” and thus is required to submit
an expert report in accordance with Rule 26(a)(2).
619 F.3d at 734-35 (emphasis added). Although Meyers
preceded the 2010 Amendment, the summary disclosure mandate
of 26(a)(2)(C) creates a minimum requirement for non-retained
experts and thus does not disturb the holding in Meyers.
See Piskorowski v. Target Corp., No. 12-cv-8865, 2014 WL
321436, at *2 (N.D. Ill. Jan. 29, 2014) (noting “the
amendments did not alter who was reqired to file an expert
disclosure” but rather altered the type of disclosures
required for experts not retained or specially employed).
Dr. Rheudasil's deposition, he was asked: “Doctor,
was there anything that you did that caused or contributed to
this filter fracture?” He answered, “No.”
(Filing No. 8674-1, Deposition of Mark Rheudasil, M.D. at
170-71). Dr. Morrison testified that the ALIF surgery did not
cause the filter fracture. (Filing No. 8674-2, Deposition of
Thomas Morrison, M.D. at 19 (“Q: Okay. Now, if someone
were to suggest that anything you did in that procedure
caused or contributed to causing the failure of this filter
in this patient, what would you say? A: I don't think
anything we did in this procedure had an effect on the
filter.”). He explained, “When we're doing
the surgery, you know, we're operating down at ¶ 4-5
and L5-S1, and the filter was placed up more in the L2 area,
L3 area. You know, very top of L3, mostly L2, up maybe to L1.
So [sic.] we're kind of like not in the same
ballpark.…” (Id. at 99). Dr. Morrison
also opined that neither Plaintiff's bone spurs or
osteophytes caused Plaintiff's filter to perforate her
IVC and/or fracture. (Id. at 93) (“I'm not
a filter expert, but I don't see any reason why they
would, or I don't think so.”).
In re Zimmer Nexgen Knee Implant Prod. Liab. Litig.,
MDL No. 2272, 2015 WL 3799534 (N.D. Ill. June 17, 2015), the
plaintiff sought to introduce the opinion testimony of her
treating surgeon on certain subjects, including the alignment
of the knee implants, his cementing technique, and the cause
of the loosening of the femoral and tibial components.
Id. at *5. The district court noted that the
critical question was when plaintiff's treating surgeon
formed his opinions-during the course of treatment, for which
a Rule 26(a)(2)(C) summary disclosure was adequate, or after
the course of treatment for purposes of litigation, for which
an expert disclosure under Rule 26(a)(2)(B) was required.
Id. The district court held that his opinions on
cementing and his elimination of possible causes for the
loosening of the implant, including the plaintiff's bone
structure, the alignment of the knee joint, her activity,
trauma to the knee, and so forth, were formed during the
course of treatment. Id. Therefore, the district
court held the treating surgeon was not required to submit an
expert report under Rule 26(a)(2)(B).
the treater in In re Zimmer, Plaintiff argues her
treating surgeons may testify on causation because their
opinions are based on their training, expertise, and
observations during treatment. The court disagrees. Neither
Dr. Rheudasil nor Dr. Morrison formed their opinions during
the course of treatment. The first time these opinions were
introduced was during their deposition testimony for purposes
of this litigation. It is, therefore, inadmissible.
reasons set forth above, Cook's Motion to Exclude
Specific Treating Physician Testimony (Filing No. 8671) is