GILMAN v. CORIZON MEDICAL SERVICES et al
Filing
128
ENTRY Granting Motion to Appoint Rule 706 Neutral Expert - 123 Motion to Appoint Rule 706 Neutral Expert is GRANTED consistent with the following rulings: 87 Motion for Expedited Ruling is DENIED as moot. 88 Motion for Petition for Funds i s DENIED as moot. Because the foregoing ruling could impact the briefing of the defendants' motion for summary judgment, 118 Motion for Summary Judgment is DENIED for the present without prejudice. 125 Motion to Stay Briefing is DENIED as moot. See Entry for details. Signed by Judge Jane Magnus-Stinson on 12/12/2017. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JAMES E. GILMAN,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CORIZON MEDICAL SERVICES,
et al.,
Defendants.
No. 2:16-cv-00194-JMS-MJD
Entry Granting Motion to Appoint Rule 706 Neutral Expert
The plaintiff brought this action pursuant to 42 U.S.C. § 1983 against the defendants
alleging that they violated his Eighth Amendment rights due to their deliberate indifference to his
arthritis in his knee and need for knee replacement. Presently before the Court is the plaintiff’s
motion for the Court to appoint a neutral medical expert under Rule 706 of the Federal Rules of
Evidence. The defendants oppose this motion. For the reasons explained below, the plaintiff’s
motion, dkt. [123], is granted consistent with the following rulings. 1
I.
Rule 706 of the Federal Rules of Evidence permits the Court to appoint a neutral expert
witness “that the parties agree on and any of its own choosing.” Fed. R. Evid. 706(a). The
purpose of this rule is to allow the Court to obtain neutral expert testimony when “scientific or
specialized knowledge will help the court to understand the evidence or decide a disputed fact.”
Elcock v. Davidson, 561 Fed. Appx. 519, 524 (7th Cir. 2014). The Court, however, “need not
appoint an expert for a party’s own benefit or to explain symptoms that can be understood by a
1
In light of this ruling, the motion for petition for funds, dkt. [88], and motion for expedited
ruling, dkt. [87], are denied as moot.
layperson.” Turner v. Cox, 569 Fed. Appx. 463, 468 (7th Cir. 2014) (citations omitted). In the
interests of justice, the Seventh Circuit has recently encouraged district courts to utilize Rule 706
in cases involving prisoner medical claims. See, e.g., Dobbey v. Mitchell-Lawshea, 806 F.3d
938, 941 (7th Cir. 2015); Rowe v. Gibson, 798 F.3d 622, 632 (7th Cir. 2015).
As explained by the plaintiff, while the parties do not contest Gilman’s condition or the
underlying treatment he received, the parties do contest whether the treatment Gilman received
rose to the level of a doctor’s choice of “easier and less efficacious treatment.” Cesal v. Moats,
851 F.3d 714, 722 (7th Cir. 2017). Gilman’s medical condition and the appropriate treatment
thereof is complicated, and it would greatly benefit the Court—whether at summary judgment or
trial—for a neutral expert to opine on these medical issues. The defendants have relied on expert
testimony in support of their claims, and the Seventh Circuit has made clear that the Court “can
always appoint [its] own expert [under Rule 706] to assist [the Court] in understanding and
evaluating the proposed testimony of a party’s expert.” ATA Airlines, Inc. v. Federal Exp. Corp.,
665 F.3d 882, 889 (7th Cir. 2011). Moreover, Gilman’s conditions, and what constitutes the
appropriate treatment, are not easily “understood by a layperson.” Turner, 569 Fed. Appx. at
468. The Court, therefore, concludes that utilization of a Rule 706 expert is the best course in
this case.
The parties disagree regarding the appropriate type of expert to appoint. Gilman seeks the
appointment of an orthopedic specialist, while the defendants argue that because they are
generalists, a general practitioner is more appropriate to provide an opinion regarding Gilman’s
care. The Court concludes that a general practitioner is properly situated to provide opinion
testimony which should shed light on whether the defendants’ action were “far afield of accepted
professional standards.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
For the foregoing reasons, the Court will appoint a general practitioner as a neutral
medical expert pursuant to Rule 706.
II.
The following procedure shall apply to the appointment of a neutral expert:
A. The expert should be selected as follows: (1) each party should submit to the
other by January 8, 2018, a list of three potential experts who are qualified and
willing to opine on the matters at issue in this case; (2) within 14 days of
exchanging these lists, the parties should confer to determine if they can agree to
one of the six potential experts; (3) during that conference, if the parties cannot
agree on an expert, each party can strike two of the experts on the other party’s
list, leaving two potential experts, one from each list; and (4) the remaining two
experts will be submitted to the Court for consideration and the Court shall
determine which of the two should be appointed.
B. The parties shall confer and attempt to reach an agreement regarding the scope
of the inquiry to be conducted by the Rule 706 expert and will file a Notice
containing the proposed scope by January 12, 2018. If they cannot reach an
agreement regarding the scope of the inquiry, they shall file competing statements
that set forth their position regarding the proper scope of the expert’s testimony.
The parties should note that, given one of the purposes of the expert is “to assist
[the Court] in understanding and evaluating the proposed testimony of a party’s
expert,” ATA Airlines, Inc., 665 F.3d at 889, the parties should ensure that the
proposed scope of testimony includes at least the topics about which their own
experts, if any, will opine.
C. Once the expert has been selected, the Court will issue an order appointing the
expert in this case and setting forth deadlines for the parties to provide the expert
with the relevant discovery and a deadline for the expert to render his or her
opinion, which shall be filed with the Court.
D. Costs incurred in appointing the expert will be apportioned as follows: the first
$15,000 in costs incurred through the use of the Rule 706 expert will be borne
equally by the defendants and the Court, the Court’s share to be paid in the spirit
of Local Rule 87(g). This means that the Court will contribute up to $7,500 to pay
the expert. Any fees charged by the Rule 706 expert(s) above $15,000 will be
borne by the defendants in the first instance. The parties are reminded that the
prevailing party is entitled to seek recovery of the costs of hiring an expert. See 42
U.S.C. § 1988. The plaintiff is notified that if he does not prevail in this action he
may be required to pay the costs associated with compensating the court
appointed expert witness consistent with 28 U.S.C. § 1915(f).
III.
Because the foregoing ruling could impact the briefing of the defendants’ motion for
summary judgment, the motion, dkt. [118], is denied for the present without prejudice. The
Court will direct further necessary proceedings after the neutral expert has rendered his opinion.
The motion to stay briefing, dkt. [125], is denied as moot.
IT IS SO ORDERED.
Date: 12/12/2017
Distribution:
JAMES E. GILMAN
110906
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Thomas A. Barnard
TAFT STETTINIUS & HOLLISTER LLP
tbarnard@taftlaw.com
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
jeb@bleekedilloncrandall.com
Adriana Katzen
BLEEKE DILLON CRANDALL, PC
adriana@bleekedilloncrandall.com
Benjamin J Legge
OFFICE OF THE ATTORNEY GENERAL
benjamin.legge@atg.in.gov
Tammara Danielle Porter
TAFT STETTINIUS & HOLLISTER LLP
tporter@taftlaw.com
Andrew Scheil
OFFICE OF THE ATTORNEY GENERAL
Andrew.Scheil@atg.in.gov
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?