KELLY v. TALBIT, M.D. et al

Filing 60

Entry Overruling Objection to the Appointment of a Neutral Expert - For the following reasons, the defendants' objection to the appointment of a neutral expert in this case (Dkt. 58 ), as outlined in the Entry of January 23, 2017, is overruled. The Court will issue the procedure for the appointment of a neutral expert through a separate order. (See Entry.) Signed by Judge Tanya Walton Pratt on 2/27/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD KELLY,

)
)
Plaintiff,
)
)
vs.
)
)
PAUL TALBIT, M.D.,
)
HOUMAN KIANI, M.D., MIKE PERSON, )
M.D.,
)
)
Defendants.

No. 1:15-cv-01529-TWP-TAB

Entry Overruling Objection to the Appointment of a Neutral Expert
On January 23, 2017, the Court on its own, proposed that a neutral expert be appointed in
this case pursuant to Rule 706 of the Federal Rules of Evidence. (Dkt. 57). Plaintiff Richard Kelly
(“Mr. Kelly”) alleges that Defendants Paul Talbit, M.D. (“Dr. Talbit”), Houman Kiani, M.D (“Dr.
Kiani”) and Mike Person, M.D. (“Dr. Person”) (collectively the “Defendants”), have been
deliberately indifferent to his need for treatment for degenerative disk disease in his lumbar and
cervical spine and degenerative bone disease in his hips. Mr. Kelly filed a request that the Court
authorize him to incur expenses to retain an expert or experts to testify regarding these conditions.
Based on this request, the Court proposed a procedure for the appointment of a neutral expert that
would provide a report to the Court regarding these issues. Defendants object to the proposal. (Dkt.
58). Mr. Kelly has filed a reply in support of the proposal. (Dkt. 59). For the following reasons,
the Defendants’ objections are overruled.
I.

Discussion

In support of their objection to the appointment of a neutral expert, Defendants argue that
Mr. Kelly does not need an expert and a neutral expert would be unfair and burdensome the Court.

A. Need for an Expert
First, to the extent that the defendants believe Mr. Kelly does not need an expert to prove
his claims, the Court finds that Mr. Kelly’s alleged spinal and hip conditions appear not to be the
types of conditions easily explained or understood by a lay person. The Seventh Circuit has
encouraged district courts to consider the appointment of experts in such a situation. See Rowe v.
Gibson, 798 F.3d 622, 631-632 (7th Circ. 2015).
B. Unfairness to the Defendants
Next, the Defendants argue that the appointment of a Rule 706 expert would be unfair to
them. As an initial matter, the Court emphasizes, as it did in the Entry proposing the appointment
of a Rule 706 expert, that the Court has discretion to do so and to apportion the costs of the expert.
To the extent that Defendants argue that the appointment of a neutral expert in this case sets a
precedent for such an appointment in every case, this assertion is not true. The need for a Rule 706
expert must, of course, be made on a case-by-case basis, and the Court makes no determination
whether such an appointment will be appropriate in other cases not currently under consideration.
The Defendants further speculate that if the appointment process proposed in this case were
applied in all cases, it would result in over six million dollars of additional litigation costs to
Corizon, the Defendants’ employer. This conclusion is based on a misunderstanding of the number
of pro se prisoner cases that have been filed in this Court based on allegations of deficient medical
care. The Defendants rely on the report (attached to the defendants’ objection at Dkt. 58-1) that
907 pro se prisoner cases were filed in this Court during the fiscal year ending September 30, 2016.
But the Defendants fail to understand that a large portion of the Court’s pro se prisoner cases are
habeas petitions, not civil rights cases like this one. Further, not all pro se prisoner civil rights
cases are based on allegations of inadequate medical care. Many are based on allegations of

excessive force or violations of the First Amendment, among other things. In other words, the
Court did not have nearly 907 pro se prisoner cases last year based on inadequate medical care.
And of the cases that have been brought based on alleged inadequate medical care, in only one has
the Court decided to appoint a neutral expert. The determination of whether to make such an
appointment is not automatic, but is based on the Court’s exercise of its discretion in determining
one would be helpful.
The defendants also suggest a number of potential problems in the appointment of a neutral
expert. They state:
(1) if Corizon is forced to pay for a doctor to review the case and the doctor’s
opinions are favorable to Corizon, will the Court then dismiss the case and require
the Plaintiff to reimburse Corizon for the cost of the expert? (2) if Corizon is forced
to pay for an expert to review the case and the expert’s opinions are favorable to
Corizon, will the Court then force Corizon to pay for a second opinion? (3) does
the Court force Corizon to pay for experts until it finds one that is favorable to
Plaintiff’s case?
Many of these questions are answered in the Court’s order proposing the appointment of a
neutral expert. It should go without saying that the goal of appointing a neutral expert is to provide
the Court with a neutral opinion regarding the plaintiff’s claims. See Turner v. Cox, 569 Fed.Appx.
463, 468 (7th Cir. 2014)(“A court may appoint an expert to help sort through conflicting evidence,
..., but it need not appoint an expert for a party’s own benefit ...”). The goal is not to create a record
to ensure that the Plaintiff will win. The implication of the Defendants’ third question – that this
is a possibility – reflects a serious misunderstanding of both the role of a neutral expert and the
role of this Court. Nowhere in the Entry does the Court propose that expert after expert be provided
for until an expert favorable to the Plaintiff is found. Further, the costs of appointment of an expert
once one party or the other prevails is discussed in the Entry proposing the appointment of an
expert. Finally, it should be noted that appointment of a neutral expert does not otherwise alter the

adversarial process. If, based on the findings of the neutral expert, or its own expert, the Defendants
think they are entitled to judgment as a matter of law, they should file a motion for summary
judgment and can rely on the neutral expert’s opinion as appropriate.
C. Burden on the Court
Finally, the Defendants argue that the appointment of a neutral expert places too much of
a burden on the court. The Defendants propose that the Court disregard the strong suggestion in
Rowe and decline to appoint a neutral expert. But, as the Defendants concede, the decision to do
so is within the Court’s discretion. The Court is exercising it here. To the extent that the Defendants
assert that the appointment of a neutral expert will cost the court six million dollars, as discussed
above, there is no support for this conclusion.
II. Conclusion
For the following reasons, the defendants’ objection to the appointment of a neutral expert
in this case (Dkt. 58), as outlined in the Entry of January 23, 2017, is overruled. The Court will
issue the procedure for the appointment of a neutral expert through a separate order.
IT IS SO ORDERED.
Date: 2/27/2017

Distribution:
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
Britney Jade McMahan
BLEEKE DILLON CRANDALL, PC
[e-mail]
Curtis T. Jones
BOSE MCKINNEY & EVANS, LLP
[e-mail]