United States District Court, S.D. Indiana, Indianapolis Division
In Re COOK MEDICAL, INC., IVC FILTERS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates to: 1:14-ml-2570-RLY-TAB Brand No. 1:14-cv-6018-RLY-TAB
ORDER ON DISCOVERY MOTIONS
Baker United States Magistrate Judge
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.
Drs. Bikdeli and Gupta
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.
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
into a consulting expert is governed by Rule 26(b)(4)(D),
which tracks the work product doctrine in its strict limits
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
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).
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).
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 ...