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

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

November 21, 2018



          Tim A. Baker United States Magistrate Judge

         I. Introduction

         This order addresses five motions: (1) Plaintiff Tanya Brand's motion to quash the deposition of Behnood Bikdeli, MD [Filing No. 8941]; (2) Brand's motion to quash the deposition of Aakriti Gupta, MD [Filing No. 9463]; (3) Brand's motion to compel discovery related to Cook's expert, Dr. David Gillespie [Filing No. 9215]; (4) Cook's motion to compel Brand to pay her share of a deposition feel [Filing No. 9393]; and (5) Brand's motion for leave to file a belated response to Cook's motion to compel her to pay a share of the deposition fee. [Filing No. 9596.] These motions come in the leadup to the third bellwether trial in this MDL.

         II. Drs. Bikdeli and Gupta

          Brand moves to quash the depositions of Dr. Bikdeli and Dr. Gupta. Drs. Bikdeli and Gupta are consulting experts who worked with Brand's testifying expert, Harlan Krumholz, MD, to prepare his expert report. Drs. Bikdeli and Gupta also attended Dr. Krumholz's deposition, assisting him by telling him on which pages to find specific information. Cook argues that Drs. Bikdeli and Gupta were “‘seamless collaborator[s]' who worked ‘hand-in-glove' with Dr. Krumholz, and the ‘fruits of their labor are indivisible.'” [Filing No. 9396, at ECF p. 2 (citations omitted).] Cook contends this collaboration entitles it to discovery into Drs. Bikdeli and Gupta, including video depositions and production of (1) emails, (2) billing records, (3) notes and drafts of publications, and (4) raw data and communications related to literature surveys.

         Cook does not address the fact that the deadline for expert discovery-June 29, 2018- has long passed. With the deadline long gone and the January 14, 2019, trial just around the corner, the Court is disinclined to permit additional expert depositions and discovery. The Court appreciates the parties' efforts to resolve this dispute amongst themselves, but as the 11th hour approaches, the untimeliness of these proposed depositions cannot be ignored. Still, the Court does not preclude these depositions on this basis alone.

         Discovery into a consulting expert is governed by Rule 26(b)(4)(D), which tracks the work product doctrine in its strict limits on discoverability:

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

Fed. R. Civ. P. 26(b)(4)(D); Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1024 (7th Cir. 2012) (“This rule is simply an application of the work product rule.”). Rule 35(b) is inapplicable, so to depose Drs. Bikdeli and Gupta, Cook must show exceptional circumstances making it impracticable for it to obtain comparable facts or opinions.

         Cook makes no effort to argue that obtaining other facts or opinions on the subject is impracticable, and the Court is not convinced that exceptional circumstances exist to overcome the protections afforded to consulting experts. Instead, the Court believes deposing Drs. Bikdeli and Gupta would be unnecessarily duplicative. Cook deposed Dr. Krumholz for a full day, producing a 325-page transcript. As Cook points out, it saw that Drs. Bikdeli and Gupta attended the deposition and helped Dr. Krumholz find information in the report. Cook took time at the deposition to question Dr. Krumholz about the extent of Drs. Bikdeli and Gupta's involvement. Deposing them about the extent of their involvement serves no purpose. Cook's argument that it needs to depose Drs. Bikdeli and Gupta to examine Dr. Krumholz's methodology is unpersuasive. Cook has the report, and its own experts can analyze and review the methodology to challenge Dr. Krumholz's conclusions and methodology. Sara Lee Corp. v. Kraft Foods Inc., 273 F.R.D. 416, 420 (N.D. Ill. 2011).

         Cook relies on Herman v. Marine Midland Bank, 207 F.R.D. 26, 31 (W.D.N.Y. 2002); Estate of Manship v. United States, No. CV 04-C-91-M2, 2008 WL 11351590 (M.D. La. Mar. 10, 2008); Long-Term Capital Holdings v. United States, No. 01-cv-1290(JBA), 2003 WL 21269586 (D. Conn. May, 6, 2003); and Derrickson v. Cir. City Stores, Inc., DKC 95-3296, 1999 WL 1456538, at *7 (D. Md. Mar. 19, 1999), aff'd sub nom. Johnson v. Cir. City Stores, Inc., 203 F.3d 821 (4th Cir. 2000). Each of these cases stands for the proposition that, if an assistant does so much of the testifying expert's work that the methodology supporting the expert's conclusion is “exclusively within the assistant's cognizance, ” then deposing the assistant is necessary to provide the party an adequate chance to cross-examine and probe the expert's conclusion. Herman, 207 F.R.D. at 31 (quoting Derrickson, 1999 WL 1456539, at *8).

         Cook fails to show Drs. Bikdeli and Gupta's involvement was exceptional. Cook emphasizes that Drs. Bikdeli and Gupta are experts in their own rights and not merely research assistants, that they frequently corresponded with Dr. Krumholz, were paid separately from Dr. Krumholz, and attended and assisted during Dr. Krumholz's deposition. Yet, it is not uncommon for consulting experts to do what Cook describes. Consulting experts are typically separately paid experts who counsel the testifying expert, which may involve attending and assisting at depositions. Cook stressed the fact that Dr. Bikdeli created data charts Dr. Krumholz incorporated into his report. But the fact that Dr. Bikdeli put together the data charts does not mean the underlying data and its implications are exclusively within Dr. Bikdeli's mind and out of reach through cross-examination of Dr. Krumholz. Further, while the number of hours Dr. Krumholz billed for drafting his report appears particularly low in light of his 179-page, 130-footnote report, Dr. Krumholz signed the report as his own conclusions, and Cook fails to show Dr. Krumholz was ...

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