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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

January 2, 2019

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 PLAINTIFF'S MOTION TO EXCLUDE THE IMPERMISSIBLE TESTIMONY OF MARK RHEUDASIL, M.D. (Filing No. 8552), THOMAS MORRISON, M.D. (Filing No. 8548), SCOTT KELLER, D.O. (Filing No. 8592), PHU THAI, M.D. (Filing No. 8565), and RICHARD REISMAN, M.D. (Filing No. 8571)

          RICHARD L. YOUNG, JUDGE

         In five separately-filed motions, Plaintiff moves to exclude the non-retained expert testimony of her treating physicians: (1) Dr. Mark Rheudasil, the vascular surgeon who inserted and retrieved Plaintiff's Celect IVC filter; (2) Dr. Thomas J. Morrison, the neurosurgeon who performed Plaintiff's anterior lumbar interbody fusion (“ALIF”) procedure; (3) Dr. Scott Keller, Plaintiff's family physician for about 20 years; (4) Dr. Phu Thai, Plaintiff's primary care doctor from 2008-2012; and (5) Dr. Richard Reisman, the pain management doctor who treated Plaintiff's chronic pain from November 2001 to December 2006, and briefly from September 4, 2015 to November 17, 2015.

         I. Applicable Law

         Experts who are “retained or specially employed” must file an expert report. Fed.R.Civ.P. 26(a)(2)(B). A treating physician is an expert witness when he testifies about opinions formed during the course of treatment. Meyers v. Nat'l R. R. Passenger Corp., 619 F.3d 729, 734 (7th Cir. 2010). A treating physician need not file an expert report under Rule 26(a)(2)(B) when he “limits his testimony to his observation, diagnosis and treatment.” Krischel v. Hennessy, 533 F.Supp.2d 790, 795 (N.D. Ill. 2008) (“When a treating physician limits his testimony to his observation, diagnosis and treatment, there is no need for a Rule 26(a)(2)(B) report.”). Rather, he may file a summary disclosure stating the facts and opinions on which he is expected to testify. Fed.R.Civ.P. 26(a)(2)(C).

         II. Discussion

         Here, Plaintiff's treating physicians filed a summary disclosure as required by Rule 26(a)(2)(C). In each of the five motions to exclude, Plaintiff argues her treating physicians' opinions were not formed during the course of treatment and should, therefore, be excluded for failing to file a Rule 26(a)(2)(B) report. The court now turns to each specific motion.

         A. Dr. Rheudasil

         Plaintiff moves to exclude (1) Dr. Rheudasil's opinions regarding the safety and efficacy of IVC filters generally and Cook filters specifically; (2) his testimony regarding other patients and his experience with IVC filters; and (3) his testimony discussing the risks and benefits of IVC filters. Upon review of the deposition designations at issue, the court finds Dr. Rheudasil's testimony is tied to his treatment decisions for Plaintiff and are admissible. Her Motion to Exclude Impermissible Expert Testimony of Mark Rheudasil, M.D. (Filing No. 8552), is DENIED.

         B. Dr. Morrison

         Plaintiff moves to exclude Dr. Morrison's testimony and opinions concerning: (1) symptoms Plaintiff did not discuss during her visits with him; (2) the informed-consent process; (3) the behavior of bone spurs over time; (4) the risk of pulmonary embolism (“PE”) from spinal surgery, (5) his observation of the PE-related death of a past spinal surgery patient; (6) the risks of anticoagulation during a lumbar fusion surgery; (7) the risk inherent in all medical devices; (8) the fact that he has never read instructions or literature on Cook's IVC filters; and (9) his understanding of risks and benefits of IVC filters from medical training and practice. These topics all relate to his treatment of Plaintiff and are otherwise based on his knowledge and experience as a neurosurgeon. Consequently, they are admissible. Plaintiff's Motion to Exclude Impermissible Expert Testimony of Thomas Morrison, M.D. (Filing No. 8548) is DENIED.

         C. Dr. Keller

         Plaintiff moves to exclude portions of Dr. Keller's testimony based on: (1) Plaintiff's medical records concerning her emergency room visits; (2) other visits to other doctors; (3) Plaintiff's prescription for and use of diazepam; and (4) other doctors' advice to get off such opioid medications and their link to her abdominal pain. Dr. Keller may not testify about the treatment she received in the emergency room or from other doctors (like Dr. Kramer, Dr. Kukler and Dr. Franz) unless those records were part of his chart and important in forming his opinions regarding her treatment. In addition, Dr. Keller may not testify regarding treatment Plaintiff received in his practice from Dr. Franz for which he has no recollection or involvement. Moreover, Dr. Keller may not testify about other medications she was prescribed from other doctors unless he, for example, changed the dosage or otherwise counseled her about those medications. Finally, Dr. Keller may not opine about Dr. Kramer's advice to Plaintiff about discontinuing opioid medications and the link to her constipation. Plaintiff's Motion to Exclude Impermissible Testimony of Scott Keller D.O. (Filing No. 8592) is therefore GRANTED in part and DENIED in part.

         D. ...


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