Long v. Kaplan

Filing 49

ORDER signed by Judge Pamela Pepper on 9/21/2015 DENYING WITHOUT PREJUDICE 11 Plaintiff's Motion for Summary Judgment; DENYING WITHOUT PREJUDICE 30 Motion for Summary Judgment; GRANTING 47 Plaintiff's Motion to Stay and Plaintiff&# 039;s Motion for Leave to File, and SETTING new deadlines. Plaintiff's Expert Witness Report is due by 11/2/2015. Defendant's Expert Witness List and Report are due by 12/4/2015. Motions for Summary Judgment are due (or the parties must ask the court for leave to stand on their original summary judgment motions) by 1/15/2016. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
PETER J. LONG,
Plaintiff,
v.

Case No. 14-cv-1218-pp

ROMAN KAPLAN, MD,
Defendant.
______________________________________________________________________________
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 11), DENYING WITHOUT PREJUDICE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 30),
GRANTING PLAINTIFF’S MOTION TO STAY (DKT. NO. 47), AND SETTING
NEW DEADLINES
______________________________________________________________________________
On October 7, 2014, Judge Griesbach (the judge to whom this case was
assigned at that time) issued an order allowing the plaintiff, Peter J. Long, to
proceed on an Eighth Amendment claim that defendant Dr. Roman Kaplan was
deliberately indifferent to the plaintiff’s serious medical needs when he
abruptly discontinued the plaintiff’s prescription medication. Dkt. No. 3. The
court also allowed the plaintiff to proceed with his state law negligence and
medical malpractice claims. Id. On December 11, 2014, Judge Griesbach
ordered the parties to file summary judgment motions by April 10, 2015, and
to file responses to any such motions within thirty days (by May 10, 2015).
Dkt. No. 9.
On January 8, 2015, the plaintiff filed a motion for summary judgment,
Dkt. No. 11, along with a supporting brief, Dkt. No. 12 and several supporting

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documents, Dkt. Nos. 13-16. The defendant responded to the summary
judgment motion on February 6, 2015, Dkt. No. 18, and the plaintiff filed a
reply on February 23, 2015, Dkt. No. 25.
On April 10, 2015, the defendant filed a motion for summary judgment,
Dkt. No. 30, which was fully briefed as of June 25, 2015.
On August 27, 2015, despite the fact that there were competing, fully
briefed motions for summary judgment on the docket, the plaintiff filed a
motion to stay. Dkt. No. 47. In that motion, he submitted that he had had
difficulty finding an expert medical witness to work with him, given that he is a
prisoner and is representing himself. He indicated that it had taken him some
four months to save enough money to hire such a witness. Id. at 1-2. He notes
that he did mention, in his June 15, 2015 response to the defendant’s motion
for summary judgment, that he was trying to hire an expert named Dr. James
Sturm. Id. at 2 (quoting Dkt. No. 36 at 24). The motion explained that the
plaintiff finally had been able to retain Dr. Sturm, though he did not yet have
an expert witness report. Id. at 2. The plaintiff attached to the motion a copy of
a $1,000.00 retainer check made out to Dr. Sturm. Id. at 4. The motion asked
the court to stay any rulings on the motions for summary judgment until
September 30, when he can file a declaration from his medical expert. Id. at 3.
The central question in this case is whether defendant Kaplan was
deliberately indifferent to the plaintiff’s pain when, on September 3, 2013, he
discontinued the plaintiff’s prescription for Tramadol abruptly, without
tapering. Dkt. No. 1 at 6-7. This same question also lies at the heart of the
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plaintiff’s state law medical negligence and medical malpractice claims. If the
plaintiff’s expert medical witness were to submit a declaration containing a
medical opinion regarding the effects of failure to taper, it could impact the
court’s decisions on the summary judgment motions.
The court acknowledges that the deadline for completing discovery
passed on March 11, 2015—over six months ago. Dkt. No. 9. The court is
cognizant, however, of the challenges facing a pro se plaintiff. The court also is
mindful of recent guidance from the Seventh Circuit regarding cases involving
medication and expert witnesses. In Rowe v. Gibson, No. 14-3316, 2015 WL
4934970 (7th Cir. Aug. 19, 2015), a pro se prisoner had brought an Eighth
Amendment claim against prison administrators and other defendants who had
prevented him from taking prescription heartburn medication prior to meals.
The district court granted summary judgment in favor of the defendants. The
Seventh Circuit reversed the case in part, and remanded to the district court.
The court, Judge Richard Posner writing, encouraged the district court to
give serious consideration on remand to recruiting a lawyer to represent the
plaintiff, appointing a neutral expert witness, or both. Id. at *10. Regarding
experts, the court said:
There are expert witnesses offered by parties and
neutral (court-appointed) expert witnesses, but
defendants serving as expert witnesses?—and in cases
in which the plaintiff doesn’t have an expert witness
because he doesn’t know how to find such a witness
and anyway couldn’t afford to pay the witness? And
how could an unrepresented prisoner be expected to
challenge the affidavit of a hostile medical doctor (in

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this case really hostile since he’s a defendant in the
plaintiff’s suit) effectively? Is this adversary procedure?
Id. at *9.
In this case, the plaintiff has represented himself well so far. He
effectively researched the drug at issue and, as Judge Posner did in Rowe, cited
to the evidence he found on the Internet—in this case, the online version of The
Physicians’ Desk Reference. See id. at 4-5 (where Judge Posner cites to the
Mayo Clinic’s website and the Physician’s Desk Reference web site). Now the
plaintiff has managed to surmount the many obstacles Judge Posner described
in Rowe, and has identified, retained and paid an expert witness. This court
will do what it believes the Seventh Circuit encouraged the district court in
Rowe to do—give the plaintiff an opportunity to fully present the evidence he
has worked hard to develop. The court acknowledges that additional briefing
will burden the defendant. But the court concludes that allowing the plaintiff to
file his expert witness report, and allowing the defendant to respond to it, will
lead to a fairer and more just resolution of the plaintiff’s claims.
The court will grant the plaintiff’s motion to stay its rulings on the two
motions for summary judgment. The court will go further, however, and will
deny without prejudice both parties’ motions for summary judgment. The court
takes this extra step for two reasons. First, the expert witness report may
require changes both to the plaintiff’s proposed findings of fact and his
arguments in support of a motion for summary judgment. The defendant also
may want to change or supplement his motion for summary judgment in light
of the expert report. Second, once the defendant has an opportunity to review
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the plaintiff’s expert witness report, the defendant may wish—as the discovery
rules allow—to obtain a medical expert/report of his own, or may wish to ask
questions of the plaintiff’s expert.
Below, the court provides deadlines by which the parties must produce
expert witness reports and, if they choose to do so, file new motions for
summary judgment. (The parties also may elect to re-file their original motions,
if the plaintiff’s expert witness report does not change their arguments.)
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion for
summary judgment (Dkt. No. 11), DENIES WITHOUT PREJUDICE the
defendant’s motion for summary judgment (Dkt. No. 30), and GRANTS the
plaintiff’s motion to stay (Dkt. No. 46).
The court further ORDERS that the plaintiff must produce his expert
witness’s report on or before Monday, November 2, 2015; the defendant may,
if he chooses to do so, identify an expert witness and provide that witness’s
report on or before Friday, December 4, 2015, and the parties may file
motions for summary judgment (or ask the court for leave to stand on their
original summary judgment motions) on or before Friday, January 15, 2016.
Dated at Milwaukee this 21st day of September, 2015.

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