NIKSICH v. CORIZON INC. et al
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 hi s Hepatitis C and resulting liver issues, along with the pain associated with these conditions. 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. 83 , is granted. (See Entry.) Signed by Judge Jane Magnus-Stinson on 7/19/2017. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
EDWARD J NIKSICH,
CORIZON INC., et al.
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
Hepatitis C and resulting liver issues, along with the pain associated with these conditions.
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. , is granted.
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 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 aptly explained by the plaintiff, there are at least four contested issues in this case
involving complex medical evidence: (1) the medical necessity of prescription pain management
during the several-month period it was withheld from the plaintiff; (2) whether the drug Norco,
which was used for a period to treat the plaintiff’s pain, is contraindicated with the plaintiff’s endstage liver disease; (3) whether the plaintiff is medically eligible to have a liver transplant; and (4)
whether the plaintiff’s incarceration makes a liver transplant medically appropriate. Filing No. 83
at 4-5. The plaintiff’s medical condition and the appropriate treatment thereof is complicated, and
it would greatly benefit the Court in ruling on the plaintiff’s claims—whether at summary
judgment or trial—for a neutral expert to opine on these medical issues. The defendants will
undoubtedly rely on their own 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, these medical conditions,
and what constitutes the appropriate treatment of them, 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 defendants set forth several objections to the appointment of a neutral expert under
Rule 706, none of which are ultimately persuasive, and several of which merit some discussion.
First, the defendants argue that the plaintiff is “asking for a supportive expert to help meet his
burden of proof,” rather than a neutral one. Filing No. 85 at 2. This not only is untrue, but is
nonsensical given that Rule 706 only permits the appointment of neutral expert. See, e.g., Kennedy
v. Huibregtse, 831 F.3d 441, 443 (7th Cir. 2016) (“The judge could also have appointed a neutral
expert witness under rule 706 . . . .”) (emphasis added); Dobbey, 806 F.3d at 941 (suggesting that
the district court on remand “exercise authority, conferred . . . by [Rule] 706, to appoint a neutral
expert witness to advise on the medical issues presented by the case”) (emphasis added).
The fact that any expert appointed pursuant to Rule 706 is a neutral expert also makes the
defendants’ rhetorical questions in their brief border on the inappropriate. For example, the
defendants ask “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?”
Filing No. 85 at 7. Another example: “does the Court force Corizon to pay for experts until it finds
one that is favorable to Plaintiff’s case?” Filing No. 85 at 7. Such questions not only imply that
the Rule 706 expert may not be neutral—which, as noted, reflects a complete misunderstanding of
Rule 706—but also that the Court itself might not be neutral in its utilization of Rule 706. Such
implications, without any basis for them, are of course inappropriate. Cf. In re Kelly, 808 F.2d
549, 551-52 (7th Cir. 1986) (noting that attorneys who make statements regarding other lawyers
and judges must be “scrupulous regarding the accuracy of those statements”). Notably, the
defendants have not offered any example of Rule 706 being utilized by this Court or any other in
the manner they seem to infer it will be.
These questions are even more concerning given that another District Judge of this Court
has roundly criticized this line of argument from Corizon in a recent decision:
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.
Kelly v. Talbit, 2017 WL 743885, at *2 (S.D. Ind. 2017).
Between the warning in this Entry and the similarly strong worded rejection of Corizon’s
argument in Kelly, the Court assumes that the inappropriate implications of this line of argument
will not be presented again by any of the defendants in this or future cases.
Second, the defendants argue at length that this Court should “disregard” the Seventh
Circuit’s decision in Rowe because “if applied, it would place an absurd and unworkable burden
on this Court” and “would create an absurd and unfair result for the Defendants.” Filing No. 85 at
4-7. It should go without saying that this Court cannot “disregard” circuit precedent. See, e.g.,
Hart v. Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan, 360 F.3d 674, 680 (7th Cir. 2004)
(“In this case, as in all others, the district court is required to follow a binding precedent of a
superior court, and it abused its discretion in declining to do so.”) (citation and quotation marks
omitted). Even if there is no specific holding in Rowe that requires the Court to appoint a neutral
expert in this case, the Court of course takes the reasoning in Rowe and other Seventh Circuit
opinions seriously. It does so in concluding here that a Rule 706 expert is appropriate in this case.
Third, the defendants argue that Rowe is inapplicable because the plaintiff here, unlike in
Rowe, is not pro se. As an initial matter, this is only true because the Court recruited pro bono
counsel to represent the plaintiff in this action pursuant to Local Rule 87. But even if this were
not true, the Seventh Circuit’s exhortations in Rowe and other cases to appoint a neutral Rule 706
expert in cases such as this one are not limited to circumstances in which the plaintiff is pro se.
Indeed, the Seventh Circuit in Rowe explicitly suggests that recruiting counsel for a pro se litigant
and appointing a neutral Rule 706 expert may both be appropriate. See Rowe, 798 F.3d at 631-32
(“[W]e urge the district judge 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 the case; or doing both.”) (citations omitted) (emphasis added).
Finally, most if not all of the defendants’ remaining arguments against the appointment of
a neutral Rule 706 expert are premised on the argument that the plaintiff does not need one. But
again, the Court does not appoint a neutral Rule 706 expert to assist the plaintiff, but to assist the
Court. A neutral Rule 706 expert’s “scientific or specialized knowledge will help the court to
understand the evidence or decide a disputed fact,” Elcock, 561 Fed. Appx. at 524, and can
specifically aid in the Court’s understanding of complex medical conditions, see Jackson v.
Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (suggesting that district courts can use Rule 706 to aid
the Court in “learning about the [plaintiff’s medical] condition”).
For the foregoing reasons, the Court will appoint a neutral medical expert pursuant to Rule
The following procedure shall apply to the appointment of a neutral expert:
A. The expert(s) should be selected as follows: (1) each party should submit to the
other by August 14, 2017, 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 August 14, 2017. 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).
IT IS SO ORDERED.
EDWARD J NIKSICH
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
Amanda Elizabeth Fiorini
INDIANA ATTORNEY GENERAL
John P. Higgins
KATZ KORIN CUNNINGHAM, P.C.
Benjamin Myron Lane Jones
INDIANA ATTORNEY GENERAL
Kristopher N. Kazmierczak
KATZ KORIN CUNNINGHAM, P.C.
Britney Jade McMahan
BLEEKE DILLON CRANDALL, PC
Sally F. Zweig
KATZ KORIN CUNNINGHAM, P.C.
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