Reese v. Trost et al

Filing 120

ORDER DENYING 113 MOTION for Order toDisclose Expert Witness filed by Kiearre Reese. Status Conference set for 8/31/2021 at 9:30 AM via telephone before Magistrate Judge Reona J. Daly. The parties should call Judge Daly's conference line at 618-439-7731 to join the call. The purpose of the call is to schedule this matter for trial. Signed by Magistrate Judge Reona J. Daly on 8/13/2021. (nmf)

Case 3:17-cv-01332-RJD Document 120 Filed 08/13/21 Page 1 of 5 Page ID #797

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIEARRE REESE,
Plaintiff,
v.
NURSE PRACTITIONER
MOLDENHAUER,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-1332-RJD

ORDER
DALY, Magistrate Judge:
This matter is before the Court on Plaintiff’s Opposed Motion to Identify Expert Witness
(Doc. 113).

For the reasons set forth below, the Motion is DENIED.
Procedural Background

Plaintiff, an inmate in the custody of the Illinois Department of Corrections (“IDOC”),
brings this action pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated
while he was incarcerated at Menard Correctional Center (“Menard”). On September 22, 2020,
the Court entered an Order granting the motion for summary judgment filed by the Warden of
Menard, and granting in part and denying in part the motion for summary filed by Dr. Trost and
Michael Moldenhauer (see Doc. 91). Pursuant to that Order, Plaintiff is proceeding in this case
on the following claim:
Count Two:

Eighth Amendment deliberate indifference claim against Nurse
Practitioner Moldenhauer for refusing to examine Plaintiff, refusing
to refer Plaintiff to another medical provider who could examine
and treat his hemorrhoids, and giving Plaintiff medication that
worsened his condition and failed to relieve Plaintiff’s pain.

Shortly after the Court’s entry of its Order on summary judgment, it assigned counsel,
Page 1 of 5

Case 3:17-cv-01332-RJD Document 120 Filed 08/13/21 Page 2 of 5 Page ID #798

Attorney Martin Bishop, to represent Plaintiff to “ensure that the final pretrial conference and trial
run more efficiently” (see Doc. 94). Following a status conference with counsel shortly after
Attorney Bishop’s assignment, Plaintiff (through counsel), filed a motion to reopen discovery (see
Doc. 100). The undersigned granted the motion in part, granting Plaintiff leave to serve written
discovery requests and take the deposition of Defendant; however, if Plaintiff sought discovery
beyond this limited scope, he was directed to file a motion setting forth, with particularity, the need
for such additional discovery (see Doc. 105). On June 17, 2021, Plaintiff filed a motion to
identify expert witness (Doc. 113) that is now before the Court. Defendant filed a response on
July 2, 2021 (Doc. 115), and Plaintiff replied on July 16, 2021 (Doc. 118).
Motion to Identify Expert Witness (Doc. 113)
Plaintiff asserts expert testimony is necessary to establish “accepted professional
judgment, practice, or standards.” More specifically, Plaintiff contends an expert can address
whether Defendant Moldenhauer could or should have attempted alternatives to a rectal
examination when he saw Plaintiff for complaints of rectal bleeding in October 2016, and explain
the importance of reviewing a patient’s medical records prior to each visit and documenting the
risks and warnings that are discussed with a patient, which Plaintiff contends Defendant failed to
do.
Plaintiff also asserts an expert is necessary in this instance due to Plaintiff’s complaint of a
delay in receiving treatment for his hemorrhoids. Plaintiff cites Williams v. Liefer, wherein the
Seventh Circuit indicated that in instances “where prison officials delayed rather than denied
medical assistance to an inmate, courts have required the plaintiff to offer ‘verifying medical
evidence’ that the delay (rather than the inmate’s underlying condition) caused some degree of
harm.” 491 F.3d 710, 714-15 (7th Cir. 2007). Plaintiff argues that due to deficiencies in the
Page 2 of 5

Case 3:17-cv-01332-RJD Document 120 Filed 08/13/21 Page 3 of 5 Page ID #799

medical records and because there are no medical records related to Plaintiff’s condition from
April 2017 to January 2018, expert testimony is necessary to explain the consequences of
Plaintiff’s lack of treatment during this time.
Defendant objects to Plaintiff’s request for an expert. Defendant asserts that discovery is
closed and, moreover, this is not a case where expert testimony is necessary for a jury to
understand the issues. More specifically, Defendant asserts this is not a case where the diagnosis
was wrong or the treatment prescribed ineffective; rather, Defendant contends the issue is whether
Plaintiff actually complained about hemorrhoids when he saw Defendant on January 20, 2017 and
March 6, 2017. Defendant also contends that the issue in this case is not about delay, but even if
it was, expert testimony is not required to show that the delay caused Plaintiff harm because
Plaintiff can testify about his hemorrhoid symptoms during the alleged delay.
Discussion
As mentioned above, Plaintiff is proceeding on one count of deliberate indifference against
Defendant Moldenhauer concerning his treatment of Plaintiff’s hemorrhoids. In the Court’s
Order on Defendant’s Motion for Summary Judgment, the undersigned found there is a question of
whether Defendant was deliberately indifferent to Plaintiff’s medical condition from January 2017
to January 2018. Specifically, the Court found that during this time, when viewing the evidence
in Plaintiff’s favor, Defendant refused to conduct any visual or digital rectal exam on Plaintiff in
January and March, 2017, and failed to order any particular treatment regimen to address
Plaintiff’s complaints. Accordingly, Plaintiff was made to wait until February 2018, when he saw
a different provider, to have his complaints addressed.
Generally, in determining deliberate indifference, the issues are not so complicated that an
expert is required. See Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). Indeed, in
Page 3 of 5

Case 3:17-cv-01332-RJD Document 120 Filed 08/13/21 Page 4 of 5 Page ID #800

Ledford, the Seventh Circuit remarked that “the test for deliberate indifference is more closely akin
to criminal law than to tort law”; thus, the “question of whether the prison officials displayed
deliberate indifference … [does] not demand that the jury consider probing, complex questions
concerning medical diagnosis and judgment. The test for deliberate indifference is not as
involved as that for medical malpractice, an objective inquiry that delves into reasonable standards
of medical care.” Id. at 359. It seems that, in this case, Plaintiff has conflated the standards and
requirements of a jury in a medical malpractice case with that of an Eighth Amendment deliberate
indifference case. The issues here are simple, as is the medical condition. A jury will need to
determine whether they agree with Plaintiff that he sought treatment for hemorrhoids from
Defendant in January and March 2017, and whether Defendant refused. If a jury finds Plaintiff
sought treatment, and Defendant refused to provide the same, it will need to determine whether
Plaintiff suffered harm due to the delay in receiving treatment. Based on the record before the
Court, it appears the only harm Plaintiff alleges he suffered was ongoing pain. In assessing the
issues presented, the Court agrees with Defendant that allowance of an expert, especially at this
late juncture, overcomplicates the issues.
The Court acknowledges there may be an element of delay to consider; however, Plaintiff
does not allege that the delay caused his hemorrhoids to require more aggressive treatment or
otherwise complicated resolution of the same. Rather, it appears Plaintiff asserts the delay caused
him prolonged pain and discomfort. This can be established by Plaintiff’s testimony at trial and
does not necessitate expert testimony. As a final note, the Court finds Plaintiff’s assertion that an
expert is necessary to address Defendant’s decisions related to his October 2016 examination of
Plaintiff to be beyond the scope of this lawsuit pursuant to the Court’s Order on Summary
Judgment (see Doc. 91 at 11).
Page 4 of 5

Case 3:17-cv-01332-RJD Document 120 Filed 08/13/21 Page 5 of 5 Page ID #801

Conclusion
Based on the foregoing, Plaintiff’s Opposed Motion to Identify Expert Witness (Doc. 113)
is DENIED. This matter is set for a Status Conference on August 31, 2021 at 9:30 a.m. The
parties should call Judge Daly’s conference line at 618-439-7731 to join the call. The purpose of
the call is to schedule this matter for trial.
IT IS SO ORDERED.
DATED: August 13, 2021
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

Page 5 of 5