GORE v. CORRECTIONAL MEDICAL SERVICE et al
ORDER granting Plaintiff's 136 Motion for Extension of Time to File Response to 10/27/2016 re 126 MOTION for Summary Judgment and denying Plaintiff's 137 Motion for Appointment of an Expert Witness. Given the age of the case, further extensions of the briefing schedule should not be anticipated.(S.O.). Signed by Judge Jane Magnus-Stinson on 10/13/2016. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JERRY A. GORE,
DR. WILLIAM WOLFE,
NURSE C. MEYERS,
) Case No. 1:13-cv-0241-JMS-DML
Entry Denying Plaintiff’s Motion for Expert Witness
Jerry Gore is a state prisoner who alleges that the defendants delayed and ultimately failed
to properly treat him when he was suffering from heat stroke. Mr. Gore, who is represented by pro
bono counsel, requests that the Court appoint an expert witness pursuant to Federal Rule of
Evidence 706 to assist him in responding to the defendants’ motion for summary judgment. He
states an expert witness is necessary to evaluate the material designated by defendants in their
summary judgment motion. As a prisoner lacking income and resources, Mr. Gore claims he is
unable to pay an expert and states in the motion that such expert can be paid by the Court or that
defendants may contribute to the cost. The defendants object to the appointment of an expert
Given the facts and allegations presented, it does not appear that expert medical testimony
will be necessary to establish the plaintiff’s claim that he suffered cruel and unusual punishment
in violation of the Constitution when he allegedly suffered heat stroke. Mr. Gore’s claim that the
defendants failed to respond to and treat a heat stroke can be proven with reference to his medical
records, testimony by witnesses, such as the plaintiff, correctional officers, medical personnel at
the prison, and medical personnel at the hospital. Further, the Court will consider taking judicial
notice of an appropriate treatise or medical journal discussing the effects of failed, delayed, or
inadequate treatment of heat stroke.
It should be noted neither Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015) nor Local Rule 87
stand for the proposition that when counsel is appointed to represent a pro se prisoner that the
Court will, or even should, assume responsibility for locating and paying an expert to support the
plaintiff’s claim. The Rowe opinion “urge[s] the district court to give serious consideration to
recruiting a lawyer to represent Rowe. . . appointing a neutral expert witness, authorized by Fed.
R. Evid. 706, to address the medical issues in this case; or doing both.” Id. at 631-32. First, here,
the plaintiff is not asking the Court to appoint a neutral expert witness, but instead is seeking the
appointment of an expert witness to assist him in defending a summary judgment motion. Second,
the Court has already appointed counsel for Mr. Gore which obviates the handicaps Rowe was
facing in his litigation. Further, having reviewed Defendants’ motion, the Court does not find that
it is in need of the assistance of an independent expert. This is so because it appears that
Defendants’ motion argues a different set of facts than that which are asserted by Plaintiff, (“Mr.
Gore’s allegations are not consistent with his medical records….” [dkt. 127 at 16]), and their expert
appears to adopt Defendants’ version of the facts [dkt. 128-3].
Finally, if the plaintiff is requesting pre-payment of expenses for an expert witness pursuant
to Local Rule 87(g)(1), he should file a motion. See General Order Regarding Local Rule 87.
http://www.insd.uscourts.gov/sites/insd/files/general-ordes/General Order Re Local Rule 87.pdf.
It is up to counsel to locate and arrange for any expert witness, and negotiate the expert’s fee.
When that is done, counsel may file a motion for pre-approval of fees under 87(g). This would be
plaintiff’s expert and not a neutral expert witness, as urged in Rowe.
For these reason the plaintiff’s motion appoint an expert witness [dkt. 137] is denied.
The plaintiff’s motion for extension of time to file a response to the defendants’ motion for
summary judgment [dkt. 136] is granted. The plaintiff shall have through October 27, 2016,
to file a response. Given the age of the case, further extensions of the briefing schedule should not
IT IS SO ORDERED.
All electronically registered counsel
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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