Dyer v. C R Bard Incorporated

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JAMES H. DYER, JR. CIVIL ACTION NO.

VERSUS 19-588-BAJ-EWD

C.R. BARD, INC., ET AL.

RULING AND ORDER

Before the Court are several pending Motions pending, to-wit: (1) the Motion to Compel

the Deposition of Dr. Ramin Ahmadi and Production of Plaintiff’s Notes Regarding Dr. Ahmadi

Relied Upon in Testifying at his Deposition (“Motion to Compel”), filed by Defendants C.R. Bard,

Inc. and Bard Peripheral Vascular Inc. (“Defendants”), and related Motions,1 including a Motion

for Leave to File Supplemental Memorandum in Support of Motion to Compel;2 (2) the Sealed

Motion for Leave to File Medical Record Exhibit Under Seal, filed by Defendants, which seeks to

file additional medical information under seal;3 and (3) the Motion to Continue Fact Discovery

and Expert Report Deadlines (“Motion to Continue”), filed by Defendants, and related Motions,4

including a Motion for Leave to File Joint Supplemental Memorandum of Law in further support

of the Motion to Continue.5

For the reasons explained below, the Motion to Compel is granted in part and a limited

deposition of Dr. Ahmadi is ordered. The Motion to Continue is granted to permit time to complete

limited additional discovery, and the other pending Motions are also granted.

1 R. Doc. 57 (Motion to Compel), R. Doc. 77 (Plaintiff’s opposition memorandum), R. Doc. 78 (Defendants’ reply

memorandum), R. Doc. 89 (Defendants’ supplemental authority), R. Doc. 91 (Plaintiff’s supplemental authority) and

sealed exhibits in support of the Motion to Compel (R. Docs. 74, 84).

2 R. Doc. 97.

3 R. Doc. 98.

4 R. Doc. 86 (Joint Motion to Continue), and R. Doc. 95 (supplemental memorandum).

5 R. Doc. 96. The Motion for Leave to file the Joint Supplemental Memorandum withdraws Plaintiff’s prior opposition

to the Motion to Continue (R. Doc. 92) and converts the Motion to Continue to a joint/consent motion.

I. Background

Plaintiff James Dyer, Jr. has asserted a products liability claim against Defendants alleging

that Plaintiff’s vena cava filter (“IVC filter”), which was manufactured by Defendants, is defective

and/or failing.6 According to Defendants, the only diagnosis underlying Plaintiff’s claim was

made by Dr. Ramin Ahmadi (“Dr. Ahmadi”) after he ordered a CT scan of Plaintiff in July 2017.

The Motion to Compel seeks to compel the deposition of Dr. Ahmadi and the production of notes

that Plaintiff consulted while testifying at his deposition.7

Shortly after the Motion to Compel was filed, the undersigned held a telephone conference

with the parties to discuss the issues raised and the matter was taken under advisement.8

Defendants subsequently filed the Motion to Continue (which is now joint), as well as additional

briefs in support of the Motion to Compel and Motion to Continue, and sealed exhibits primarily

consisting of Plaintiff’s medical information. The additional briefs raised another discovery issue,

i.e., the deposition of Dr. Bryan Griffith, one of Plaintiff’s treating physicians, revealed that

Plaintiff saw additional medical providers that had not previously been identified (Dr. Curtis

Strange and Dr. Kyle Girod). Defendants also want to obtain medical records from those doctors

and possibly depose them.9

On January 28, 2021, a follow-up telephone conference was held with the parties to address

the repeated calls from counsel inquiring as to the status of the pending motions, and also to direct

the parties to discuss and attempt to resolve Defendants’ requests for discovery and depositions

related to the newly-identified medical providers.10 Following the January 28, 2021 conference,

6 R. Doc. 1; R. Doc. 25; R. Doc. 77, p. 5.

7 R. Doc. 57. The Motion to Compel was timely filed. See R. Doc. 53.

8 R. Doc. 41.

9 R. Doc. 87-1, pp. 2-3.

10 R. Doc. 93.

three additional motions were filed in support of the Motion to Compel and Motion to Continue,

all of which will be granted.11 In their Joint Supplemental Memorandum, the parties advised that

they reached an agreement with respect to discovery related to the newly-identified providers and

with respect to a subsequent October 9, 2020 CT scan ordered by Dr. Ahmadi;12 however, they

were unable to resolve Defendants’ request for Dr. Ahmadi’s deposition or the production of

Plaintiff’s deposition notes.

II. Law and Analysis

A. Applicable Legal Standards

Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any

nonprivileged matter that is relevant to a claim or defense13 and proportional to the needs of the

case, considering the importance of the issues at stake in the action, the amount in controversy, the

parties’ relative access to relevant information, the parties’ resources, the importance of the

discovery in resolving the issues, and whether the burden or expense of the proposed discovery

outweighs its likely benefit.14 A court must additionally limit the frequency or extent of discovery

if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be

11 Motion for Leave to File Joint Supplemental Memorandum of Law in further support of the Motion to Continue at

R. Doc. 96; Motion for Leave to File Supplemental Memorandum in Support of Motion to Compel at R. Doc. 97; and

Sealed Motion for Leave to File Medical Record Exhibit Under Seal at R. Doc. 98.

12 R. Doc. 96, p. 2, R. Doc. 96-1, p. 4, R. Doc. 97-2, p. 3 (Defendants’ Supplemental Memorandum in Support of

Motion to Compel) and R. Doc. 98-2 (sealed medical record listing Dr. Ahmadi as “ordering physician” for the

October 2020 CT scan). Plaintiff’s October 9, 2020 CT scan was revealed to Defendants through the report of Dr.

David Feldstein, Plaintiff’s expert. The October 9, 2020 scan was ordered by Dr. Ahmadi but was taken at Central

Imaging Center, a facility different from the one that took the July 2017 scan, and was read by a different physician,

Dr. Deana A. Jones. R. Doc. 96-1, p. 3. According to the parties’ Joint Supplemental Memorandum, “The Parties are

in agreement that Bard should have an opportunity to collect all medical records relating to this new CT scan and any

other recent medical treatment obtained by Mr. Dyer, as well as undertake any other written discovery or depositions

related thereto; provided, however, that the Parties disagree as to whether Dr. Ramin Ahmadi, who ordered this

October 9, 2020 scan, should be deposed.” Id. at p. 4.

13 Crosby v. Louisiana Health Service and Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011) (“Generally, the scope of

discovery is broad and permits the discovery of ‘any nonprivileged matter that is relevant to any party’s claim or

defense.’”), citing Fed. R. Civ. P. 26(b)(1) and Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982).

14 Fed. R. Civ. P. 26(b)(1).

obtained from some other source that is more convenient, less burdensome, or less expensive; (ii)

the party seeking discovery has had ample opportunity to obtain the information by discovery in

the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”15

Particularly regarding consulting non-testifying expert witnesses, Rule 26(b)(4)(D) of the

Federal Rules of Civil Procedure provides:

(D) Expert Employed Only for Trial Preparation. 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.

The Advisory Committee Notes make clear that Rule 26(b)(4) “does not address itself to the expert

whose information was not acquired in preparation for trial but rather because he was an actor or

viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.”

According to the Notes, “[s]uch an expert should be treated as an ordinary witness.”16

B. Defendants Will Be Granted a Limited Deposition of Dr. Ahmadi

Defendants assert that, according to Plaintiff’s medical records and testimony, Dr. Ahmadi

issued the medical directive that ordered the July 14, 2017 CT scan, interpreted the scan, and made

the diagnosis that Plaintiff’s IVC filter is failing.17 In particular, Defendants rely on several

medical records produced in discovery, which reflect that Dr. Ahmadi, an out-of-state medical

15 Fed. R. Civ. P. 26(b)(2)(C).

16 In re Taxotere (Docetaxel) Products Liability Litigation, No. MDL 16-2740, 2018 WL 5669019, at *3 (E.D. La.

Nov. 1, 2018).

17 R. Doc. 57-2, p. 5 and see R. Doc. 77, p. 5.

provider,18 was listed as the “referring provider” authorizing the CT scan.19 The July 13, 2017

One Call Care (“One Call”) Diagnostics Provider Appointment Authorization Form, which orders

“CT abdomen without contrast,” lists Dr. Ahmadi as “referring physician,” states that the chief

complaint is “unspecified injury of inferior vena cava, subsequent encounter,” and requests:

“Please send CD of images to the Referring Physician.”20 The July 14, 2017 form from Medical

Center Diagnostics, the facility who took the scan, reflects “Ahmadi, Ramin” as the “Referring

Provider;” a “Study” of “CT abdomen w/o dye” was taken; and, the “Diagnostics” description is

listed as “unspecified injury of inferior cava—initial encounter.”21 A Health Insurance Claim

Form submitted on behalf of Plaintiff for the July 2017 scan also lists “Ramin Ahmadi” as “Name

of Referring Provider or Other Source.” Defendants contend that no other documents, notes, or

other records were produced relating to the scan, including any documents indicating the basis

underlying the reasons for the scan.22

Plaintiff testified (after looking at a piece of paper that he read from), that Dr. Ahmadi

(whom Plaintiff testified works for his attorneys), was the only doctor that told him that his filter

was “failing.”23 Plaintiff never saw Dr. Ahmadi in person and never spoke to him, but “that’s

whose name was on the paper they sent me back from the imaging center. And he checked it,”

and “He’s the one that signed [the image taken] that the filters damaged my organs, or the filter

18 According to documents filed by Defendants, Dr. Ahmadi is licensed as a physician in Connecticut. R. Doc. 57-2,

p. 9, R. Doc. 57-7, p. 2, and Doc. 57-8, pp. 2-3. Dr. Ahmadi initially ordered the July scan on July 13, 2017 using a

“One Call Care Diagnostics Provider Appointment Authorization Form” that lists a California address for Dr. Ahmadi

and was faxed to Medical Center Diagnostics, which is located in Covington, Louisiana. R. Doc. 74, p. 10. One Call

appears to be the insurance provider for the July 2017 scan. See R. Doc. 74, p. 6 under “Coverage information.”

Plaintiff agrees that Dr. Ahmadi is licensed in Connecticut and avers that the California address is the billing address

of One Call, where the July 2017 image was to be sent. R. Doc. 77, p. 8, n. 21, and p. 12.

19 R. Doc. 74, p. 6 (July 14, 2017 Medical Center Diagnostics sheet), and p. 10 (July 13, 2017 One Call Diagnostics

Provider Appointment Form).

20 R. Doc. 74, p. 10.

21 R. Doc. 74, p. 6. The Medical Center Diagnostics form also lists a California address for Dr. Ahmadi. Id.

22 R. Doc. 57-2, pp. 7-8.

23 R. Doc. 57-9, pp. 8-10, 14. Plaintiff was equivocal about whether the words “failing” or “failed” were actually on

the image that he received. R. Doc. 57-9, pp. 13-14.

failed.”24 Plaintiff later testified that there may have been another paper that accompanied the

image that he received from the imaging center, and on that paper it said “the device failed.”25

Plaintiff was “sure” that Dr. Ahmadi diagnosed him with the alleged mode of failure of his filter

listed on his plaintiff profile form (i.e., “three struts perforate the plaintiff’s IVC, embedded IVC

filter”) and the “failed” diagnosis was based on the image of the July 2017 CT scan Plaintiff

received that Dr. Ahmadi signed.26

Plaintiff testified that, likely before the July 2017 scan, he spoke with his family doctor,

Dr. Derrius Ray, about the filter and Dr. Ray told him to “leave it alone, as long as it’s not bodily

hurting you.” Plaintiff did not speak to any other medical professionals about the July 2017 scan

after it was taken, and no other doctor ever told him that his filter was failing or that there was

anything wrong with it.27 Following Plaintiff’s testimony, Defendants requested Dr. Ahmadi’s

deposition; however, Plaintiff objected to the deposition on the grounds that Dr. Ahmadi is a

consulting expert.28 The parties subsequently conferred regarding the deposition of Dr. Ahmadi,

but were unable to resolve the dispute.29 Defendants assert three arguments in support of deposing

Dr. Ahmadi: Dr. Ahmadi is a treating physician, or wears “two hats;” that exceptional

circumstances warrant Dr. Ahmadi’s deposition because it would be impossible for Defendants to

obtain information on the same issue by any other means; and finally, Plaintiff waived any

24 R. Doc. 57-9, pp. 9-10.

25 R. Doc. 57-9, p. 13.

26 R. Doc. 57-9, p. 16-17. The plaintiff profile form referred to in Plaintiff’s deposition transcript does not appear to

be attached to any of the Motion papers. However, the interpretation of Plaintiff’s July 2017 CT scan reflects that the

impression of the scan was “No significant tilting of IVC filter; however, all IVC struts penetrate IVC wall. At least

3 struts also penetrate into adjacent small vessels/lymph nodes. No mechanical failure or breakage of the IVC filter.”

R. Doc. 58-2, p. 5 (sealed) but which Plaintiff filed unsealed into the record at R. Doc. 77-3, p. 9. Plaintiff testified

that Dr. Ahmadi was the basis for this statement (R. Doc. 57-9, p. 21) but the scan lists the interpreting physician as

Dr. T. Henry Vreeland. R. Doc. 77-3, p. 9.

27 R. Doc. 57-9, pp. 11-12, 149.

28 R. Doc. 57-2, p. 10.

29 R. Doc. 57-2, p. 11.

applicable privilege relating to Dr. Ahmadi pursuant to the partial disclosure or “placing at issue”

doctrines.30

Dr. Ahmadi As A Consulting Versus Treating Physician

Defendants first contend that, while Dr. Ahmadi may have been retained as a consulting

expert, at some point, it is “possible for a witness to wear two hats”—one as an expert and one as

a fact witness, and when that happens, “some of the information that the expert holds may be

protected, while other such information may be subject to disclosure.”31 Defendants contend that

the Court must consider whether Dr. Ahmadi acquired any information as a fact witness that is

subject to disclosure, and the facts developed during discovery and discussed above show that Dr.

Ahmadi acted a treating physician when he ordered the July 2017 scan and interpreted it.

Defendants contend that, in order for Dr. Ahmadi to comply with Louisiana law in ordering the

scan, Plaintiff would have to be Dr. Ahmadi’s patient, with an existing patient-physician

relationship, and Dr. Ahmadi should have evaluated Plaintiff in order to determine that the scan

was medically necessary and appropriate.32 Therefore, according to Defendants, “Plaintiff cannot

possibly contend that these actions, and Dr. Ahmadi’s subsequent review and assessment of the

imaging and related reporting, do not constitute medical treatment of Plaintiff.”33

Defendants argue that Plaintiff’s reliance on the decision in Sweezey v. C R. Bard. Inc.,

(“Sweezey”), where that court quashed the deposition of Dr. Ahmadi on the basis that he was a

consulting expert, is nondispositive of the instant Motion. Defendants argue that the one-page

30 R. Doc. 57, pp. 17-24; R. Doc. 78, pp. 11-13.

31 R. Doc. 57-2, pp. 12-13, citing Jones v. Celebration Cruise Operator, Inc., (“Jones”), No. 11-61308, 2012 WL

1029469 (S.D. Fla. Mar. 26, 2012) (other citations omitted); In re Taxotere (Docetaxel) Products Liability Litigation,

No. MDL 2740, 2018 WL 8519149, (E.D. La. Aug. 28, 2018) ( “Taxotere- August”); and Fed. R. Civ. P. 26(b)(4).

32 R. Doc. 57-2, p. 14 citing Louisiana State Board of Medical Examiners, Advisory Opinion FAQs, La. R.S.

37:3213(D), La. R.S. 37:1291.1 and citing the deposition testimony of Dr. Darren Hurst, Plaintiff’s interventional

radiology expert at R. Doc. 57-12.

33 R. Doc. 57-2, p. 14.

Sweezey decision contains no reasoning and Defendants have asserted waiver arguments that were

not raised in Sweezey.34

Defendants also argue that no other doctor before Dr. Ahmadi recommended imaging of

Plaintiff’s IVC filter, found that Plaintiff had an “unspecified injury of vena cava,” necessitating

CT imaging, or found that Plaintiff’s filter had failed. However, because Dr. Ahmadi made these

determinations and diagnoses relating to Plaintiff, which are the basis for Plaintiff’s claims and

damages in this matter, Defendants should be allowed to depose Dr. Ahmadi as a fact witness and

treating physician to determine: the medical basis for Dr. Ahmadi’s decision to order the CT scan

in the first instance (and the newly discovered October 9, 2020 CT scan, also ordered by Dr.

Ahmadi);35 the information Dr. Ahmadi derived from the scan(s); and Dr. Ahmadi’s subsequent

diagnoses or recommendations to Plaintiff, including the basis for telling Plaintiff that his filter

was “failing” after the July 2017 scan.36 In arguing that Dr. Ahmadi wore the hat of a treating

physician when he ordered the scan, Defendants rely on Jones v. Celebration Cruise Operator,

Inc.37 According to Defendants, in Jones, the court permitted the defendants to subpoena the

records of a doctor who ordered (but did not perform) an MRI of the plaintiff at the request of his

counsel, and then recommended a course of treatment for the plaintiff. The Jones court held that,

although the plaintiff retained the doctor as a consulting expert, the doctor took on the role of a

treating physician when he recommended treatment different from any of the plaintiff’s other

doctors.38 Defendants also rely on Taxotere-September, in which the Eastern District of Louisiana

ordered production of the pathology reports, not just the underling tissue samples, of doctors

34 R. Doc. 6, n. 2. See Sweezey, No. 19-2172 (N.D. Tex. Jan. 23, 2020) at R. Doc. 93.

35 R. Doc. 97, p. 1.

36 R. Doc. 57-2, p. 13, 16.

37 No. 11-61308, 2012 WL 1029469 (S.D. Fla. Mar. 26, 2012).

38 Id. at *3.

retained as consulting experts who performed punch biopsies of the plaintiffs’ scalps, finding that

the reports were objective results of the testing performed and subject to production.39

Citing the North District of Texas’s Sweezey ruling, Plaintiff contends that discovery

should be precluded from Dr. Ahmadi because he is a non-testifying consultant and all three

elements of Fed. R. Civ. P. 26(b)(4)(D) have been met. First, Dr. Ahmadi was retained purely as

a consulting expert whose only involvement with Plaintiff was to order the July 2017 scan at the

request of Plaintiff’s counsel. According to Dr. Ahmadi’s Declaration, Dr. Ahmadi did not

perform, see, interpret, or issue any reports regarding the scan, did not speak with Plaintiff or any

other medical providers regarding interpretation of the July 2017 scan, and will not provide or

recommend any medical treatment for Plaintiff.40 Plaintiff avers that One Call arranged for the

scan, Medical Center Diagnostics performed the scan, and another doctor, Dr. T. Henry Vreeland,

interpreted and signed the scan and diagnosed that “all IVC struts penetrate IVC Wall. At least 3

struts also penetrate into adjacent small vessels/lymph nodes.”41 As a result of the IVC filter

perforation of Plaintiff’s IVC, Plaintiff filed the instant suit on April 1, 2018 in the Bard

Multidistrict Litigation, MDL 2641.42

39 R. Doc. 57-2, pp. 15-16 citing Taxotere-August, 2018 WL 8519149 at *4, (“To suggest that the punch biopsies are

not a form of medical treatment ignores reality and common sense” and ordering the reports be produced to the court

for in camera review); In re Taxotere (Docetaxel) Products Liability Litigation, No. MDL 2740, 2018 WL 8519150,

**1, 3-5 (E.D. La. Sept. 24, 2018) (“Taxotere-September”) (ordering production of the pathology reports after in

camera review, finding that the doctors acted as treating physicians and also that the defendants established

exceptional circumstances warranting production); and In re Taxotere (Docetaxel) Products Liability Litigation, No.

MDL 2740, 2018 WL 5669019 (E.D. La. Nov. 1, 2018) (“Taxotere-November”) (affirming production of the

pathology reports, but on the basis of Fed R. Civ. P. 35 and the finding that the doctors were not consulting experts

because these doctors did more than review the records of other providers. “These doctors saw the Plaintiffs in person

or, in some cases, examined Plaintiffs’ tissue. They acquired their information through percipient observations.

Because of this, they fall outside of the definition of consulting experts. If these doctors, who are designated as non-

testifying experts, had only reviewed medical records and never met with the Plaintiffs or observed their tissue

samples, then they would be consulting experts. Similarly, these experts do not qualify as treating physicians. As

previously noted, the doctors were selected, retained, and paid by the PSC, not by the individual Plaintiffs. While the

doctors may have made diagnoses and recommendations as Judge North observed, the doctors communicated these

opinions directly to the PSC, not to the Plaintiffs.”) Id. at **4-5.

40 R. Doc. 77, pp. 4, 7 and R. Doc. 77-6, p. 2.

41 R. Docs. 77, pp. 5-7 citing R. Doc. 77-3, p. 7.

42 R. Doc. 77, pp. 5-6.

Plaintiff additionally argues that the July 2017 scan does not form the basis for any of

Plaintiff’s ongoing medical care because Plaintiff’s treating physician, Dr. Ray, has not seen any

imaging of Plaintiff’s filter. Further, Dr. Ryan Majoria, the doctor who implanted the filter in 2005,

has not seen Plaintiff since he implanted the device, has not spoken with any of Plaintiff’s other

providers, and was not aware of Plaintiff’s current condition. Plaintiff argues that there is no

evidence that any of Plaintiff’s treating physicians have seen the July 2017 scan or Dr. Vreeland’s

report.43

Plaintiff also contends that the One Call appointment authorization form relied upon by

Defendants that lists Dr. Ahmadi as referring physician is not a prescription and was not signed by

Dr. Ahmadi, nor did he sign the imaging of the July 2017 CT scan.44 Plaintiff testified that he

never saw or spoke to Dr. Ahmadi.45 Further, when Plaintiff testified that Dr. Ahmadi opined that

Plaintiff’s IVC filter “failed” and Dr. Ahmadi checked the scan, Plaintiff was confused because

Dr. Ahmadi’s Declaration under oath avers that he did not perform or interpret the July 2017 CT

scan, and the report of the imaging reflects that the scan was interpreted and the perforation

diagnosis was rendered by Dr. Vreeland, whom Defendants could, but have chosen not to, depose

(as of the time of the briefing).46 Plaintiffs contend that the imaging and interpretation services

performed by Medical Center Diagnostics were independent of Dr. Ahmadi, whose only

connection to Plaintiff was in referring Plaintiff to Medical Center Diagnostics to undergo the

scan.47

43 R. Doc. 77, p. 7, citing R. Doc. 77-7, p. 4 (Ray deposition transcript); R. Doc. 77-8, pp. 3-5 (Majoria deposition

transcript).

44 R. Doc. 77, p. 7 and R. Doc. 74, p. 12 (under seal).

45 R. Doc. 77, p. citing R. Doc. 77-2.

46 R. Doc. 77, p. 8 citing R. Doc. 77-2, pp. 7-8 (Plaintiff’s deposition testimony); R. Doc. 77-6, p. 2 (Ahmadi

Declaration); and R. Doc. 77-3, pp. 6-7 (report of July 2017 CT scan).

47 R. Doc. 77, p. 8.

Next, Plaintiff contends Dr. Ahmadi will not be called to testify by Plaintiff, and any

opinions or work product generated by him will not be reviewed by Plaintiff’s testifying experts.48

Rather, Plaintiff has designated other experts who will testify regarding Plaintiff’s condition based

on imaging available to Defendants that can be read and interpreted by their own experts. Plaintiff

argues that Defendants incorrectly state that the evidence of Plaintiff’s perforated filter would not

have existed but for Dr. Ahmadi’s role in this case because it “disregards actual imaging performed

in this case” as well as “literature” regarding progressive IVC filter perforations.49 Further,

Plaintiff argues that Dr. Ahmadi has no first-hand knowledge regarding Plaintiff, and the only

knowledge he has regarding Plaintiff was acquired through consultation with Plaintiff’s counsel.50

Plaintiff contends that, despite the implication by Defendants, Dr. Ahmadi did not act

inappropriately in ordering the scan, which is justified by “sufficient literature.”51 Plaintiff avers

that Jones is distinguishable because, in that case, the consulting expert recommended surgery for

the plaintiff, and thus took on the role of a treating physician; however, Dr. Ahmadi has not

recommended treatment for Plaintiff and is not an actor with respect to Plaintiff’s medical care.52

Similarly, Plaintiff argues that the Taxotere decisions are distinguishable because the doctors

performed punch biopsies on the plaintiffs, and their reports were required to be produced after in

camera inspection; in this case, both the imaging and reports have already been produced to

Defendants.53

48 R. Doc. 77, p. 9, 12 and R. Doc. 77-4 (Declaration of counsel for Plaintiff, Ben C. Martin).

49 R. Doc. 77, p. 9 and R. Doc. 77-10.

50 R. Doc. 77, p. 9 and R. Doc. 77-6, p. 2.

51 R. Doc. 77, pp. 9-10 citing R. Doc. 77-10 (an article that, according to Plaintiff, surmises (in part): “Caval

penetration is a frequent complication of IVC filter placement.”).

52 R. Doc. 77, p. 11.

53 R. Doc. 77, p. 11. Plaintiff also seeks to quash a deposition subpoena and subpoena duces tecum directed to Dr.

Ahmadi. R. Doc. 77, p. 13. There is no deposition subpoena or subpoena duces tecum directed to Dr. Ahmadi in this

case. The subpoenas filed by Plaintiff order Dr. Ahmadi’s deposition in the Sweezey case. R. Doc. 77-11. However,

even if there were, this request is not properly asserted in an opposition memorandum but should be asserted via

appropriate motion. As Plaintiff’s request to quash subpoenas is not properly before the Court, it is not considered.

In Reply, Defendants assert that the order sent from Dr. Ahmadi authorizing the imaging

of the July 2017 scan was medical treatment of Plaintiff, which alone authorizes Dr. Ahmadi’s

deposition, including the basis for and circumstances surrounding the order. Dr. Vreeland cannot

testify regarding the reasons why Dr. Ahmadi ordered the scan; Dr. Ahmadi’s Declaration also

does not explain why he issued the order for the scan; and Defendants are not bound to accept

Plaintiff’s assertions that the scan was ordered at the request of counsel and/or was justified by

medical literature. Rather, Defendants are entitled to depose Dr. Ahmadi to test the veracity of

these statements and to learn the basis for the order.54 Defendants further argue that Dr. Ahmadi’s

Declaration is not more credible than Plaintiff’s testimony, and Defendants should be permitted to

depose Dr. Ahmadi to inquire into its contents and test its credibility. Defendants point out that

while the imaging attached to their Motion did not have Dr. Ahmadi’s name, additional imaging

they have obtained contains Dr. Ahmadi’s name.55

Defendants reiterate that Dr. Ahmadi is the only doctor to have recommended that Plaintiff

undergo testing related to his IVC filter, and to have listed that Plaintiff’s “Chief Complaint” was

“unspecified injury of inferior vena cava,” a finding not made by any other doctor. As such,

Defendants are entitled to find out why Dr. Ahmadi ordered the scan because that alleged injury

is the basis for Plaintiff’s claims in this case. Defendants assert that, based on Plaintiff’s opposition

memorandum and Dr. Ahmadi’s Declaration, Dr. Ahmadi’s order for the scan “may be the only

work Dr. Ahmadi has in fact done to date relating to Mr. Dyer—effectively stripping him of any

purported ‘consulting expert’ protection.”56

54 R. Doc. 78, pp. 2, 7-8.

55 R. Doc. 78, pp. 8-9 and R. Doc. 84, pp. 2-336 (sealed images of Plaintiff’s abdomen).

56 R. Doc. 78, p. 7 citing R. Doc. 77, p. 8 (Dr. Ahmadi’s only connection with Plaintiff was to order the scan); R. Doc.

77, p. 12 (noting that “In the event that Dr. Ahmadi produces any work product….,” which suggests to Defendants

that he has not yet produced any); and R. Doc. 77-6, p. 2 (Ahmadi Declaration that he did not interpret the imaging

and has not made any recommendations as a result of the imaging).

The Jones and Taxotere decisions, while instructive, are not controlling. Jones is

distinguishable, as there the doctor was retained as a consulting expert and ordered an MRI of the

plaintiff, which he did not perform or read. However, after the MRI, the doctor himself conducted

an IME of the plaintiff at the request of the plaintiff’s counsel and recommended a course of

treatment directly to the plaintiff, and thus wore the hat of a treating physician. In this case, Dr.

Ahmadi did not conduct an IME or take the scan of Plaintiff, nor does it appear that he

recommended a course of treatment directly to Plaintiff.

The court in Taxotere-August and Taxotere-September held that the doctors retained as

consulting experts also conducted punch biopsies on the plaintiffs and were treating physicians,

such that their pathology reports had to be produced; however, on review, of the magistrate judge’s

decision, the district judge found that the doctors were not consulting experts because they did

more than just review the findings of other doctors—rather, they conducted the punch biopsies

themselves. However, the district judge found they were also not treating physicians, because they

were retained by the plaintiffs’ counsel, not the plaintiffs, and while they may have made

diagnoses, they made them to the plaintiffs’ counsel, not directly to the plaintiffs, and never treated

the plaintiffs again. Thus, the district judge held that Fed. R. Civ. P. 26 did not apply at all and

instead held that the doctors were Fed. R. Civ. P. 35 examining experts who essentially conducted

IMEs of the plaintiffs. Their pathology reports were subject to production according to Fed. R.

Civ. P. 35.57

While not entirely on point, the balance of the factors considered in Taxotere-November

indicate that Dr. Ahmadi may not be a treating physician such as the doctor in Jones because he

was retained by Plaintiff’s counsel, he did not personally conduct any imaging of Plaintiff, he did

57 Taxotere-November, 2018 WL 5669019, at **4-5.

not recommend any treatment directly to Plaintiff, and both he and Plaintiff agree that he has never

met with or spoken to Plaintiff—although he did at least order the July 2017 and October 2020

scans, and according to Plaintiff, interpreted the July 2017 scan. Likewise, applying Taxotere-

November, whether or not Dr. Ahmadi is a consulting expert is also an open question, because it

appears that he was retained by counsel to review the work of others, yet he personally ordered the

scan that initiated this litigation, his name is on some of Plaintiff’s scans, and Plaintiff testified

that Dr. Ahmadi interpreted the July 2017 scan and diagnosed that Plaintiff’s filter is failing. Dr.

Ahmadi does not appear to be an examining physician either, as he did not personally conduct an

exam of Plaintiff. Thus, while Taxotere-November provides guidance, it is not determinative of

the treatment of Dr. Ahmadi in this case.

The Sweezey motion to quash and the Sweezey Court’s one-page ruling were reviewed, and

the facts of Sweezey appear distinguishable because, in that case, Dr. Ahmadi apparently stated

that he only ordered the scan and did not interpret it.58 However, in this case, there is a factual

dispute as to this issue because Plaintiff testified that Dr. Ahmadi “checked” the scan, “signed that

the filters damaged my organs, or the filter failed,” and “signed the image” of the July 2017 CT

scan that was sent to Plaintiff.59 While counsel argues that Plaintiff was confused during this

deposition, and relies on Dr. Ahmadi’s Declaration, which states that Dr. Ahmadi did not interpret

the scan, Plaintiff’s testimony reflects that Plaintiff believes that Dr. Ahmadi interpreted and/or

58 Sweezey, No. 19-2172, (N.D. Tex. Dec. 30, 2019) at R. Doc. 61 and (N.D. Tex. Jan. 23, 2020) at R. Doc. 93. The

parties refer to Berg v. C.R. Bard, Inc., No. 19-3216 (E.D. WA. Nov. 19, 2020) at R. Doc. 44, in which the court also

denied a request for Dr. Ahmadi’s deposition. However, the decision’s analysis is relatively brief, and like Sweezey,

does not appear to feature similar facts, including testimony regarding Dr. Ahmadi’s alleged interpretation of the scan

and diagnosis of Plaintiff’s filter. R. Doc. 77, p. 14, n. 32; R. Doc. 78, p. 1, n. 1. Likewise, Plaintiff’s Notice of

Supplemental Authority relies on Stefan v. C.R. Bard, Inc. et al., No. 19-1333 (E.D.W.I. Jan. 25, 2021), at R. Doc. 31

and Flemming v. C.R. Bard Inc., et al., No. 19-1400 (D. Conn. Jan. 26, 2021) at R. Doc. 34, in which the district courts

of Wisconsin and Connecticut both denied requests for Dr. Ahmadi’s deposition; however, these rulings are in the

form of court minute entries that do not provide analysis helpful to resolution of the instant Motion to Compel, and

do not indicate if there was conflicting testimony as is present here. R. Doc. 91-1, p. 2 and R. Doc. 91-2, p. 2.

59 R. Doc. 57-9, pp. 9-10.

signed the scan, as discussed above. This testimony conflicts with allegations that Dr. Ahmadi has

no firsthand knowledge about Plaintiff’s case and made no medical diagnosis regarding Plaintiff,

to the extent Dr. Ahmadi ordered two scans, and interpreted at least one scan, and made a diagnosis

that Plaintiff’s IVC filter is failing. Such interpretation and diagnosis, if they in fact happened,

may have rendered Dr. Ahmadi an actor or viewer with respect to at least one transaction or

occurrence that is part of the subject matter of the lawsuit and outside of Fed. R. Civ. P.

26(b)(4)(D).60

Because Dr. Ahmadi issued a medical order for the July 2017 scan, the factual dispute as

to whether Dr. Ahmadi interpreted that scan and diagnosed Plaintiff’s filter as failing, the questions

as to Dr. Ahmadi’s exact role in ordering the scan, and the fact that Dr. Ahmadi then ordered the

October 2020 scan, Defendants should be permitted to take at least a limited deposition of Dr.

Ahmadi, at a date and time and in a manner mutually agreeable to the parties, to question him

regarding his medical involvement with Plaintiff’s CT scans, including why he ordered them, and

to elicit his testimony under oath regarding whether or not he interpreted the scans, made a

diagnosis (and if so, what the diagnosis was), and whether he signed the scans (and the

significance, if so). The scope of the deposition would be accordingly limited to those issues, only,

as Plaintiff has not refuted Dr. Ahmadi’s representations that he did not conduct the actual imaging;

never saw or spoke to Plaintiff on any issue; never spoke to Plaintiff’s doctors or the persons who

conducted the imaging; and never suggested or directed any treatment or surgery to Plaintiff as a

result of the imaging.61

60 Defendants’ Notice of Supplemental Authority points out that, earlier this year, the Eastern District of New York

granted an extension of the fact discovery deadline and ordered that a deposition subpoena be served on Dr. Ahmadi

in connection with a CT scan that he ordered of the plaintiff in that case. R. Doc. 89-1, citing Johnson v. C.R. Bard

Incorporated, et al., No. 19-5212 (E.D. N.Y., Jan. 22, 2021), at R. Doc. 36. To the extent Plaintiff attempts to detract

from this order by arguing that the order requiring service of a deposition subpoena on Dr. Ahmadi “did not order that

Dr. Ahmadi be presented for a deposition,” the distinction is unpersuasive. R. Doc. 91, p. 1.

61 R. Doc. 77-6, p. 2.

Exceptional Circumstances Justifying A Limited Deposition

Even if Dr. Ahmadi were purely a consulting expert, which is not clear, exceptional

circumstances exist pursuant to Fed. R. Civ. Rule 26(b)(4)(D)(ii) to justify a deposition limited to

probing the basis for Dr. Ahmadi’s ordering of the July 2017 and October 2020 scans, and whether

he interpreted the scans and/or rendered a diagnosis, because Dr. Ahmadi is the only physician

who ordered these scans and therefore is the only witness who has first hand knowledge of the

basis for the order, and because the July 2017 scan appears to be the grounds upon which Plaintiff

initiated his claims.62 Neither Dr. Vreeland nor Dr. Jones can provide firsthand information as to

why Dr. Ahmadi ordered the scans, and therefore Plaintiff’s argument on this point has no merit.63

Accordingly, the Motion to Compel will be granted in part, compelling a limited deposition

of Dr. Ahmadi as described above.64

The Notes Are Public Record

Defendant also seeks production of handwritten notes to which Plaintiff referred during his

deposition testimony under Fed. R. Evid. 612, which requires production of materials a witness

uses to refresh memory while testifying. In the one paragraph devoted to opposing Defendants’

request,65 Plaintiff does not really explain why the notes should not be produced. Regardless, no

extensive analysis of this issue is necessary. Although Plaintiff was permitted to submit the notes

62 See, e.g., Taxotere-September, 2018 WL 8519150, at *5 (“As for Francis, she identifies Claiborne as the only

physician who conducted a “skin biopsy” and Dr. Thompson as the only physician to have issued a “Dermatopathology

Report.” Because that pathology report includes a diagnosis related to her medical claims, exceptional circumstances

would mandate its disclosure even if it were not otherwise discoverable.”) In light of the rulings ordering the

deposition, Defendants’ other argument, that the Plaintiff waived any applicable privileges via the partial disclosure

or “placing at issue” doctrines, is not reached. R. Doc. 57-2, pp. 19-24; R. Doc. 78, pp. 12-13.

63 R. Doc. 77, p. 13.

64 The parties were advised during the telephone conferences related to these motions that this was the likely outcome

of the Motion to Compel, largely for the reasons contained in this Ruling. The parties are reminded of their

professional obligations to deal in good faith with each other and with the Court. It is fairly obvious that Plaintiff’s

testimony regarding his belief about Dr. Ahmadi’s role in his diagnosis, although perhaps mistaken, is a sufficient

basis to permit at least a limited deposition of Dr. Ahmadi to clarify the discrepancy. It is likewise fairly obvious that,

if Dr. Ahmadi testifies consistently with his Declaration, there is no need to belabor these points.

65 R. Doc. 77, p. 16.

under seal for in camera review,66 the notes were filed into the record without seal.67 Accordingly,

the notes are public record and certainly no longer protected by any confidentiality.

C. A Short Continuance of Deadlines is Warranted

In light of the granting of the Motion to Compel, and the agreed-upon additional discovery

related to newly-identified medical providers, i.e., Dr. Curtis Strange and Dr. Kyle Girod, and the

October 9, 2020 scan, a short continuance of the fact and expert discovery deadlines is warranted,

as newly discovered facts may impact expert disclosures.68 Therefore, the parties’ Joint Motion

to Continue shall be granted, and a separate Amended Scheduling Order will be issued.69

III. Conclusion

Accordingly,

IT IS ORDERED that Motion for Leave to File Joint Supplemental Memorandum of Law

in further support of the Motion to Continue,70 the Motion for Leave to File Supplemental

Memorandum in Support of Motion to Compel71 and the Sealed Motion for Leave to File Medical

Record Exhibit Under Seal,72 all filed by Defendants Bard Peripheral Vascular Inc. and C.R. Bard

Inc., are GRANTED. The Clerk of Court is directed to file the Joint Supplemental Memorandum

at R. Doc. 96-1 and the Supplemental Memorandum at R. Doc. 97-2 into the record and is directed

to file the Medical Record at R. Doc. 98-2 into the record under seal.

66 R. Doc. 72 (“Plaintiff’s opposition is due by no later than November 25, 2020 and shall include an explanation of

the basis for redaction of the notes and a copy of any privilege log regarding the notes. The notes should be filed

under seal for an in camera inspection, if necessary.”) (emphasis in original).

67 R. Doc. 91-3.

68 R. Doc. 96-1, pp. 2-4.

69 R. Doc. 86.

70 R. Doc. 96.

71 R. Doc. 97.

72 R. Doc. 98.

IT IS FURTHER ORDERED that the First Motion to Compel the Deposition of Dr.

Ramin Ahmadi and Production of Plaintiff’s Notes Regarding Dr. Ahmadi,73 filed by Defendants

Bard Peripheral Vascular Inc. and C.R. Bard Inc., is GRANTED IN PART. Defendants are

permitted to conduct a limited deposition of Dr. Ahmadi, at a date and time and manner mutually

agreeable to the parties, to question him regarding his medical involvement with Plaintiff’s CT

scans, including why he ordered the scans, and to elicit his testimony under oath regarding whether

or not he interpreted the scans and made a diagnosis (and if so, what the diagnosis was), and

whether he signed the scans. Defendants’ request for the handwritten notes to which Plaintiff

referred during his deposition testimony does not require disposition as Plaintiff filed those notes

into the record of this case without seal.

IT IS FURTHER ORDERED that the Joint Motion to Continue Fact Discovery and

Expert Report Deadlines74 is GRANTED for good cause, in light of the granting of the Motion to

Compel and the necessary discovery related to additional medical providers newly-identified, i.e.,

Dr. Curtis Strange and Dr. Kyle Girod, and the October 9, 2020 scan. A separate Amended

Scheduling Order will issue.

Signed in Baton Rouge, Louisiana, on April 8, 2021.

S

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

73 R. Doc. 57.

74 R. Doc. 86.