Phillips v. Tangilag et al

Filing 127

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 10/9/2019. Granting 115 Motion to Compel. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:16-CV-00088-TBR
DONALD R. PHILLIPS,

PLAINTFF

V
SHASTINE TANGILAG, MD, et al.,

DEFENDANT

MEMORANDUM OPINION & ORDER

Plaintiff, Donald R. Phillips, has filed a Motion to Compel Transport.

[DN 115.]

Defendants filed a response objecting, [DN 116, 117], and Plaintiff’s time to reply has passed. As
such, this matter is ripe for adjudication. The Court GRANTS Plaintiff’s motion to compel.
I. Background
Plaintiff, an inmate housed within the Kentucky Department of Corrections, filed suit
against Shastine Tangilag, Lester Lewis, Ted Jefferson, Cookie Crews, Denise Burkett, and
Correct Care Solutions in June of 2016 due to medical treatment concerning a painful mass on his
left calf that resulted from an assault he suffered at the hands of a fellow inmate. [DN 1.] Phillips
asserted claims under the Eighth Amendment to the United States Constitution and Section
Seventeen of the Kentucky Constitution, as well as medical malpractice claims. By way of relief,
Phillips requested compensatory and punitive damages, declaratory relief, and injunctive relief in
the form of medical treatment. Id.
On December 5, 2017, Plaintiff, through counsel, moved for a 120-day extension of his
expert disclosure deadline because he was transferred to another prison, which, according to

Plaintiff, interfered with discovery. [DN 52.] The request for an extension went unopposed, and
the Court granted it on January 3, 2017. [DN 53.]
Then, seeking court-ordered medical treatment, Plaintiff moved for a preliminary
injunction on March 25, 2018. [DN 56.] The Court denied the injunction because Phillips failed
to demonstrate a strong likelihood of success on the merits of his claims, and he failed to
demonstrate that he sought treatment through intra-prison channels prior to requesting court
intervention. [DN 60.] In denying Phillip’s motion for preliminary injunction, the Court noted
that the last time Plaintiff sought medical treatment for the mass on his calf the injury was resolving
itself. Id. Finally, the Court noted that the Defendants appeared to indicate that should Plaintiff
reach out through proper intra-prison channels to obtain a new evaluation of his injury by prison
medical staff, it would not be denied to him—provided that he complied with prison regulation.
Id.
Plaintiff then filed a motion for the Court to reconsider and requested that the Court abate
all pretrial deadlines pending the Court’s ruling. [DN 63.] Over the Defendants’ opposition, the
Court granted Plaintiff’s request, vacating all pretrial discovery deadlines, and setting new expert
disclosure deadlines for January 15, 2019 for Plaintiff and February 15, 2019 for the Defendants.
[DN 71.]
Plaintiff requested another extension on January 14, 2019. [DN 76.] That motion was
opposed by Defendants but was granted by the Court. [DN 87.] The Court stated in that Opinion
that it was Plaintiff’s “last extension” and if the deadline was not met, he would “proceed without
[an expert].” [DN 87 PageID 719.] During a telephonic conference, the Court set a deadline of
April 24, 2019 for Plaintiff’s Counsel to “locate and consult with a medical expert”. [DN 92.]
Plaintiff filed a Joint Status Report stating Plaintiff arranged to be seen by doctors at Aptiva Health.

[DN 95.] Plaintiff also stated that he would be able to identify the specialist who would examine
him by the telephonic conference scheduled for May 1, 2019. [Id.] Plaintiff still had not named a
specialist as was expected by that date but noted that physicians were not willing to assess Plaintiff
outside their facilities. [DN 103.] The Court then granted Plaintiff’s request to file a renewed
motion to compel. [Id.]
On May 20, 2019, instead of filing a renewed motion to compel—as instructed by the
Court—Plaintiff moved again for an injunction requiring transportation to a medical facility “for
examination and treatment of his condition by a qualified physician” in order to “relieve his
ongoing physical and mental pain and suffering.” [DN 105.] The Court again denied this motion
and granted Plaintiff a “final opportunity to procure an expert to be used at trial.” [DN 111.] The
Court also stated, “[i]f Phillips cannot demonstrate to the Court that he has retained such an expert
within the time allotted to him below, not only will the Court refuse to order him transported, but
Phillips will proceed without an expert witness.” [DN 111 PageID 980.] Plaintiff initially had 21
days—until July 22—to renew his motion to compel transportation. However, in a telephonic
conference on July 2, 2019, the Court vacated all deadlines and ordered Plaintiff to file the renewed
motion by July 16, 2019. [DN 112.]
Plaintiff filed a motion for extension on July 15, 2019, and that motion was granted by the
Court [DN 122.] Subsequently, Plaintiff filed his motion to compel transport on July 26, 2019.
Plaintiff now asks the Court to compel transport.
II. Discussion
Plaintiff’s counsel asserts that he has arranged for Plaintiff to be seen by a physician at the
University of Kentucky Division of General Surgery. [DN 115 at 1.] Plaintiff has not, however,

identified a specific physician that has been retained to serve as a witness. Defendants assert that
this is a fatal flaw. [DN 116 at 8.] The Court disagrees.
Plaintiff cannot identify a specific physician that will serve as a witness because
examination of Plaintiff must occur first. “It is beyond cavil that a plaintiff may retain its own
expert medical witness to examine himself and render opinion testimony at trial.” Silverstein v.
Fed. Bureau of Prisons, 2009 U.S. Dist. LEXIS 47646 *10 (W.D. Colo. May 20, 2009). It would
be unfair to Plaintiff to deny him the opportunity to obtain an expert witness.
It is true that Plaintiff is looking to be treated by a physician. However, the Court does not
find that to be the primary purpose. See Cabrera v. Williams, 2007 U.S. Dist. LEXIS 66480 (D.
Neb. Sept. 7, 2007) (citing Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997). Plaintiff
states, “UK, via its representative Kara Tolley, has explicitly agreed to provide the Court and the
parties a report on its examination”. [DN 115 at 2.] This report that UK has agreed to provide
serves a purpose for trial. The Court believes Plaintiff is seeking a physician for litigation and
should be permitted to do so. The possibility of future medical treatment is simply a by-product
of seeking a medical expert.
III. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED THAT Plaintiff’s Motion to
Compel, [DN 115], is GRANTED.

IT IS SO ORDERED.
October 9, 2019

October 9, 2019

cc: Counsel