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In re Cook Medical Inc. IVC Filters Marketing, Sales Practices and Product Liability Litigation

United States District Court, S.D. Indiana, Indianapolis Division

November 19, 2018

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

         Dr. 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.

         I. Standard for Expert Testimony

         The 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).

         II. Discussion

         A. Plaintiff's Objections

         Plaintiff's 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[1] 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.

         Despite 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).

         Dr. 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[2] and ICD[3] 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 ...

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