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 PLAINTIFF'S MOTION TO EXCLUDE THE
TESTIMONY OF BENNETT L. LEVENTHAL, M.D.
RICHARD L. YOUNG, JUDGE
Bennett L. Leventhal is a psychiatrist who was asked by the
Cook Defendants to conduct a psychiatric evaluation of
Plaintiff to determine whether alternate causes may have
caused or contributed to her physical and emotional injuries.
In his Expert Report, Dr. Leventhal concludes that “it
does not appear to be the case” that Plaintiff's
filter and related complications “are the cause of
[Plaintiff's] pain, discomfort, and loss of
function.” (Filing No. 8612-1, Expert Report of Dr.
Leventhal at 1). Plaintiff now moves to exclude his testimony
because: (1) he never examined Plaintiff; (2) he failed to
state his conclusions to a reasonable degree of medical
certainty; (3) his differential diagnosis is flawed; and (4)
his opinions will not assist the jury in determining a fact
in issue. For the reasons explained below, the court
DENIES Plaintiff's motion.
Standard for Expert Testimony
admissibility of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence and the principles announced in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). Specifically, (1) the expert must be
qualified by knowledge, skill, experience, training, or
education; (2) the proposed expert testimony must assist the
trier of fact in determining a relevant fact at issue in the
case; (3) the expert's testimony must be based on
sufficient facts or data and reliable principles and methods;
and (4) the expert must have reliably applied the principles
and methods to the facts of the case. Lees v. Carthage
College, 714 F.3d 516, 521-22 (7th Cir. 2013); see
also Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir.
2012) (“Rule 702 requires that expert testimony be
relevant, reliable, and have a factual basis-requirements
that must be met before the jury is allowed to hear and
perhaps be persuaded by the expert testimony.”). As the
proponent of the expert testimony at issue, the Cook
Defendants have the burden of demonstrating the expert's
admissibility. Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009).
first two objections-that Dr. Leventhal never examined
Plaintiff and that he failed to state his conclusions to a
reasonable degree of medical certainty-are rejected. As to
the first objection, Dr. Leventhal never examined Plaintiff
because “he was not given the opportunity for an
appropriate, direct, clinical examination of
[Plaintiff].” (Filing No. 8612-1, Expert Report of Dr.
Leventhal at 1). As to the second objection, Dr. Leventhal
specifically stated that he “was able to use the
available materials to develop opinions to a reasonable
degree of medical certainty.” (Id.; see
also Id. at 20 (“These opinions are offered to a
reasonable degree of medical certainty.”)). The court
now turns to the third objection regarding Dr.
Leventhal's differential diagnosis.
Plaintiff's failure to submit to a clinical examination
by Dr. Leventhal, he was able to construct a differential
diagnosis of Plaintiff's “most likely”
psychiatric disorders based upon Plaintiff's medical
records, two videotaped depositions of Plaintiff, a nd the
depositions of Plaintiff's treating physicians; namely,
Dr. Mark Rheudasil, Dr. Thomas Morrison, Dr. Scott Keller,
Dr. Phu Thai, and Dr. Richard Reisman. (Id. at 10
(“Based on the available records, it has been possible
to construct a psychiatric differential diagnosis to reflect
principal psychiatric disorders most likely to be affecting
Ms. Brand.”); see also id., Appendix 1). He
also reviewed the Independent Medical Examination of Dr.
William Turton, an Indianapolis-based physician who is
board-certified in Internal Medicine as well as the reports
of Plaintiff's own experts, Dr. Gregory Gordon and Dr.
Harlan Krumholz. (Id., Appendix 1).
Leventhal began his differential diagnosis by stating:
The differential includes five major categories of
psychiatric disorders: 1. Somatic Symptom and Related
Disorders; 2. Depressive Disorders; 3. Substance-Related and
Addictive Disorders; 4. Anxiety Disorders; and 5. Obsessive
Compulsive and Related Disorders. These disorders can
co-exist so that they both separately, and together,
contribute to [Plaintiff's] clinical picture. Within each
category of disorder, there are specific syndromes that, to
varying extents, are reflected in the record of
[Plaintiff's] symptoms; they have the strong likelihood
of playing a major role in her current clinical presentation.
(Id. at 10). He defined each disorder by its
DSM-5 and ICD codes. He then explained, based upon
the medical documentation before him, that the record
indicates Plaintiff meets the criteria for Somatic Symptom
Disorder with the specification Predominantly Pain that is
Persistent and of Moderate Severity, meets at least some of
the criteria for Major Depressive Disorder, Persistent
Depressive Disorder, and Opioid Use Disorder, and might meet
four of the criteria for Generalized Anxiety Disorder.
(Id. at 11-17). He reached the following conclusions
to a medical degree of certainty:
[Plaintiff] has a long history of medical and psychiatric
problems that contribute to her current clinical status.
1. [Plaintiff] has reported a history of abdominal and other
pains that are of a similar nature and pattern for
approximately twenty years, before and after the placement of
the vena cava filter and its subsequent complications.
2. [Plaintiff] has psychiatric symptoms and disorders that
complicate her medical and surgical disorders. These have
been present for many years, both before and after ...