Beard v. Obaisi et al

Filing 75

OPINION (See Written Opinion): 1) Plaintiff's motion to amend is denied (d/e 41 ). 2) Plaintiff's motions to compel against Dr. Obaisi are granted in part and denied in part (d/e's 52 , 55 , 60 , 69 ). By November 5, 2012, Dr. Ob aisi is directed to file under seal for the Court's in camera review a list of any fines, sanctions, reprimands, discipline, or revocation of hospital privileges from the time period January 1, 2002 to October 1, 2012, arising from or relating to Dr. Obaisi's practice of medicine. Relevant documentation and explanations regarding that list should also be filed. Also by November 5, 2012, Dr. Obaisi is directed to file under seal a list of any criminal convictions against Dr. Obaisi o r criminal charges filed against Dr. Obaisi which occurred after October 1, 2002. 3) Plaintiff's motion for financial assistance to obtain expert testimony in support of his case is denied (d/e 55 ). 4) Plaintiff is advised that he must file his documents electronically. If Plaintiff continues to file his documents by mail, the Court may enter an order directing the clerks to return those documents to him unfiled. Entered by Judge Sue E. Myerscough on 10/25/2012. (VM, ilcd)

E-FILED

Thursday, 25 October, 2012 08:24:33 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DONALD E. BEARD,

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Plaintiff,
v.
DR. OBAISI,
Defendants.

11-CV-3360

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Logan Correctional Center,
alleges deliberate indifference to his need for effective treatment for bone spurs in
his ankle. Discovery closed at the end of July, 2012, with the exception of
information sought in Plaintiff’s pending motions to compel. This order addresses
those motions to compel and Plaintiff’s motion to amend his complaint and motion
for financial assistance to hire an expert. For the reasons below, the motions to
compel will be granted in part. The motion to amend and motion for financial
assistance will be denied.
I.

Plaintiff’s motion to amend his complaint is denied (d/e 41).
Plaintiff seeks to add Dr. Mark Baker as a Defendant, who allegedly works
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at the corporate headquarters of Wexford Health Sources, Inc., in Pittsburgh.
According to Plaintiff’s medical records, Dr. Obaisi spoke with Dr. Baker in
March, 2012, in a collegial review of Plaintiff’s ankle problem. (Pl.’s medical
recs., 3/1/12 entry, d/e 41, p. 12.) The record apparently says that Dr. Baker
advised Dr. Shah to continue conservative treatment and try physical therapy. In
support of his motion for summary judgment, Dr. Obaisi avers in his affidavit that
the other physicians he conferred with in the collegial review agreed with Dr.
Obaisi’s diagnosis and treatment approach. (Dr. Obaisi Aff. ¶ 23.)
Plaintiff contends that Dr. Baker should have intervened to stop Dr. Obaisi’s
deliberate indifference and directed Dr. Shah to conduct diagnostic tests and
recommend surgery. But Dr. Baker cannot be held liable for Dr. Obaisi’s
constitutional violations solely because Dr. Baker is allegedly Dr. Obaisi’s
supervisor. Kuhn v. Goodlaw, 678 F.3d. 552, 555 (7th Cir. 2012)(Ҥ 1983 liability
is premised on the wrongdoer's personal responsibility”); Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001)(no respondeat superior liability under §
1983). Supervisors are liable only if they, too, were personally responsible,
meaning they participated in, directed, condoned, or turned a blind eye to the
constitutional violation. Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th
Cir. 2012)(“To show personal involvement, the supervisor must ‘know about the
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conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what
they might see.’”)(quoted cite omitted). Dr. Baker’s participation in a collegial
review and agreement with Dr. Obaisi’s conservative approach does not allow a
plausible inference that Dr. Baker is personally responsible for Dr. Shah’s
treatment decisions or was deliberately indifferent to Plaintiff’s medical problems.
Therefore, Plaintiff’s motion to amend will be denied on grounds of futility.
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.2008)("[D]istrict courts have broad
discretion to deny leave to amend where there is undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or
where the amendment would be futile.").
II.

Plaintiff’s motions to compel against Dr. Obaisi are granted in part
(d/e’s 52, 55, 60, 69).
Plaintiff moves to compel Dr. Obaisi to answer questions about prior

settlements, charges, and sanctions against him. Specifically, Plaintiff wants to
know about any settlements in civil actions; charges brought by the American
Medical Association; job terminations; investigations or prosecutions by the
Attorney General’s Office; facilities that have banned Dr. Obaisi; convictions;
reprimands; sanctions; and fines against Dr. Obaisi. He alleges that Dr. Obaisi has
been relieved of his positions at other prisons due to a lack of reasonable care of
the inmates and was removed as Chief Medical Officer at Logan Correctional
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Center in August 2012. Plaintiff also wants to know if Dr. Obaisi has been treated
for depression, has had psychotherapy, or has taken psychotropic medications.
Dr. Obaisi objects on grounds of relevance and admissibility. Plaintiff
counters that this information is relevant and admissible to show Dr. Obaisi is
incompetent, insensitive, lacking in credibility, and has a habit of deliberate
indifference. Plaintiff argues that specific instances of misconduct by Dr. Obaisi
against other patients would be admissible under Fed. R. Evid. 405(b) which
applies if a “person’s character or character trait” is an “essential element” of a
claim. Plaintiff also contends that Dr. Obaisi’s mistreatment of other patients
would be admissible as habit evidence under Fed. R. Civ. P. 406.
Dr. Obaisi’s alleged mistreatment of other patients with other conditions
would not be admissible to prove Dr. Obaisi acted in conformance with a character
trait of deliberate indifference. See Fed. R. Evid. 404(b)(a)(“Evidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.”).
Additionally, Dr. Obaisi’s character is not an “essential element” of Plaintiff’s
claim under Fed. Rule of Evidence 405(b). The essential element in this case is
whether Dr. Obaisi was deliberately indifferent to Plaintiff’s serious medical need.
Deliberate indifference arises “‘if the decision by the professional is such a
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substantial departure from accepted professional judgment, practice, or standards,
as to demonstrate that the person responsible actually did not base the decision on
such a judgment.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting Sain v.
Wood, 512 F.3d 886, 894-95 (7th Cir. 2009). “A medical professional is entitled to
deference in treatment decisions unless no minimally competent professional
would have so responded under those circumstances.” Sain, 512 F.3d at 894-95.
However, evidence of prior wrongs is admissible to prove a material fact
besides character, such as motive or intent. Fed. R. Evid. 404(b)(2); see Okai v.
Verfuth, 275 F.3d 606, 610 (7th Cir. 2001)(setting forth test for whether prior bad
acts are admissible). Dr. Obaisi’s motive and intent could be relevant to the
deliberate indifference inquiry. Additionally, whether Dr. Obaisi is competent to
practice medicine could also be relevant to the deliberate indifference inquiry, and
prior criminal convictions might be admissible to attack Dr. Obaisi’s credibility.
While Plaintiff’s requests as worded are too broadly, the Court cannot conclude
with confidence that Plaintiff’s requests are entirely irrelevant.
Plaintiff’s motion to compel will be allowed to the extent he asks about
fines, sanctions, reprimands, or other disciplinary action against Dr. Obaisi. The
motion to compel will also be granted with regard to prior criminal convictions,
criminal charges, or the revocation of hospital privileges. However, Dr. Obaisi’s
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entire 40-year career as a physician is too large of a time frame. See Okai, 275
F.3d at 210 (prior bad act “must be of recent vintage”). The time frame will be
limited from January 1, 2002 to the present.
The Court is cognizant of the potential security danger of disclosing
sensitive or embarrassing information about prison employees to prisoners. The
possibility exists that the information could be sought and used by a prisoner pro se
plaintiff for improper purposes of harassment, humiliation, or manipulation of the
prison employee. Accordingly, the information will be filed under seal for the
Court’s in camera review.
The remainder of Plaintiff’s motion to compel will be denied. Prior
settlements and insurance premiums are not relevant to whether Dr. Obaisi was
deliberately indifferent to Plaintiff’s medical needs. Settlements typically involve
no admission of liability and are motivated by a desire to reduce financial costs and
exposure. The Court notes for Plaintiff’s benefit that Dr. Obaisi was not a
defendant in Roe v. Elyea, as Plaintiff contends. Further, as of this date, no
judgment has been entered against Dr. Obaisi in any of the cases against him in the
Central District of Illinois, according to this Court’s search. In any event, the
Court would not allow the admission of prior judgments against Dr. Obaisi because
any marginally probative value would be substantially outweighed by the danger of
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confusion, waste of time, and undue delay. Fed. R. Civ. P. 403. For the same
reasons the Court would not allow the admission of prior judgments in favor of Dr.
Obaisi to show Dr. Obaisi’s lack of deliberate indifference.
As to Plaintiff’s other requests, whether Dr. Obaisi was discharged from the
service is not relevant, nor is whether Dr. Obaisi has ever been depressed, on
psychotropic medications, or undergone psychotherapy. These requests amount to
a fishing expedition for red herrings. Lastly, Dr. Obaisi has already disclosed that
his license has never been suspended or revoked so that information will not be
compelled. The Court notes that the website for the Illinois Department of
Financial and Professional Regulation lists Dr. Obaisi’s physician’s license as
current and active and also states that Dr. Obaisi has never been disciplined.
www.idfpr.com (last visited 10/17/12).
III.

Plaintiff’s motion for financial assistance to obtain expert testimony (d/e
55)
Plaintiff asks the Court for financial assistance to obtain the testimony of

four experts. The Court is not authorized to pay for experts to support Plaintiff’s
case. Federal Rule of Evidence 706 permits the Court to appoint an expert if
necessary to help the Court or jury understand a material fact, and payment for that
expert comes from the parties, not the Court. A Rule 706 expert is neutral and is
appointed only when necessary to assist the Court or the jury, not to help a party
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prove his case. See In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d
651, 665 (7th Cir. 2002). On the present record, the Court sees no need for the
appointment of an expert to assist the jury or the Court to “understand the evidence
or decide a fact in issue, . . . .” Fed. R. Evid. 702(a); Ledford v. Sullivan, 105 F.3d
354, 359 (7th Cir. 1997)(expert not necessary to determine whether defendants
were deliberately indifferent).
In this motion Plaintiff also appears to ask the Court to subpoena witnesses
to testify, but the Court cannot conduct depositions for Plaintiff. Plaintiff’s
incarceration necessarily limits him to written discovery.
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion to amend is denied (d/e 41).
2) Plaintiff’s motions to compel against Dr. Obaisi are granted in part and
denied in part (d/e’s 52, 55, 60, 69). By November 5, 2012, Dr. Obaisi is directed
to file under seal for the Court’s in camera review a list of any fines, sanctions,
reprimands, discipline, or revocation of hospital privileges from the time period
January 1, 2002 to October 1, 2012, arising from or relating to Dr. Obaisi’s
practice of medicine. Relevant documentation and explanations regarding that list
should also be filed. Also by November 5, 2012, Dr. Obaisi is directed to file
under seal a list of any criminal convictions against Dr. Obaisi or criminal charges
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filed against Dr. Obaisi which occurred after October 1, 2002.
3) Plaintiff’s motion for financial assistance to obtain expert testimony in
support of his case is denied (d/e 55).
4) Plaintiff is advised that he must file his documents electronically. If
Plaintiff continues to file his documents by mail, the Court may enter an order
directing the clerks to return those documents to him unfiled.
ENTERED: October 25, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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