Goodvine, Christopher v. Hamblin, Gary et al

Filing 70

ORDER that the court will appoint an independent expert in the field of psychiatry to assist in this case; and plaintiff will be assessed at one-time 50% tax on his prison account to help pay the expert's costs, and defendants will be respo nsible for the remainder up front. Should plaintiff ultimately prevail, no additional payment will be required. Should defendants ultimately prevail, the court will continue to levy a 10% charge against plaintiff's account until he has repaid his one-half share of the expert's fees up to the maximum amount of $5,000. Signed by District Judge William M. Conley on 3/21/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTOPHER GOODVINE,
Plaintiff,

OPINION AND ORDER

v.
12-cv-134-wmc
GARY ANKARLO, LIEUTENANT BOODRY,
OFFICER CONROY, JEFF HEISE, DR. JOHNSON,
OFFICER JULSON, DR. KUMKE, DR. McLARIN,
MICHAEL MEISNER, OFFICER MILLONIG,
CAPTAIN MORGAN, DR. NELSON, JANEL NICKEL,
OFFICER SCHNEIDER, OFFICER WILEY,
and OFFICER WITTERHOLT,
Defendants.

On February 7, 2013, the court (1) partially granted plaintiff’s motion for a
preliminary injunction; and (2) solicited additional briefing as to whether an impartial
expert psychologist should be appointed, with costs taxable to defendants. Both sides
have responded, each nominating a proposed expert.

Defendants also argue that an

expert is unnecessary given plaintiff’s extensive history of psychological and psychiatric
evaluation and treatment.

In the alternative, defendants argue that if an expert is

deemed necessary, then both sides should bear a portion of the costs.

A.

Need for an Expert

Federal Rule of Evidence 706(a) states that “[t]he court may on its own motion or
on the motion of any party enter an order to show cause why expert witnesses should not
be appointed.” Expert witnesses are helpful “if scientific, technical, or other specialized

knowledge will assist the trier-of-fact to understand the evidence or decide a fact in
issue.” Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). When a legal claim by
its very nature requires expert testimony to establish all of the required elements for
liability and the plaintiff cannot afford an expert, a court may in its discretion appoint a
neutral assistant and charge the costs to the defendant. Id. In this case, the trier-of-fact
is asked to determine if defendants exhibited deliberate indifference to a serious risk of
harm to plaintiff. A prison official acts with “deliberate indifference” when (1) an inmate
suffers an objectively intolerable risk of serious injury, and (2) the official knows of the
substantial risk of harm to the inmate and intentionally fails to take reasonable steps to
remedy it. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Arguing that an independent expert is unnecessary in this case, defendants
contend that since well before this litigation began plaintiff has been under the care of
numerous Department of Corrections’ psychologists and psychiatrists, all of whom have
treated and diagnosed him in a way mostly consistent with the diagnosis defendants now
maintain is the correct one -- Dr. Maier’s January, 2013, conclusion (confirmed by
plaintiff’s psychologist, Dr. Buhr) that plaintiff suffers primarily from antisocial
personality disorder, and that his suicide attempts are entirely the product of efforts to
manipulate staff rather than an uncontrollable mood disorder or any other mental
disorder, disease or defect.
There are at least two reasons why this argument fails to convince the court that a
neutral expert is unnecessary here. First, while plaintiff’s medical file may (more or less)
support Dr. Maier and Dr. Buhr’s ultimate diagnosis, even to the court’s untrained eye,
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the file is far from the pillar of consistency defendants now suggest. On the contrary,
plaintiff rightly points out that it is riddled with inconsistent, and at times, seemingly
contradictory diagnoses.

Plaintiff’s treatment notes contain alternative diagnoses by

other doctors and a history of prescribing mood-control medication to treat them while
defendants would explain this away as incorrect and merely precautionary.

Given

plaintiff’s medical history, there appears on this record the real possibility that a neutral
expert might come to different conclusions. Even assuming that the examining doctors
were completely neutral when they made their notes, the medical file will be presented
and explained through the testimony of defendants’ witnesses, meaning an alternative
perspective may provide some counterpoint to the defendants’ interpretations.
Second, for purposes of qualified immunity analysis, as important as the diagnosis
given to plaintiff now and in the past is the question of whether defendants’ refusal to
put him in therapeutic restraints in the face of near certain cutting was and is a legitimate
medical treatment. That question speaks to whether defendants acted with deliberate
indifference in failing to restrain him when they knew he was capable of attempting
suicide or cutting himself to the point of endangering his own life. Absent a legitimate
therapeutic basis for this refusal, a trier-of-fact may decide that defendants intentionally
failed to “take reasonable steps” to remedy a significant risk of serious harm. Farmer, 511
U.S. at 834.
Plaintiff’s treating psychologist, Dr. Buhr, has testified that restraints will be bad
for plaintiff’s psychological growth and that the decision not to restrain him is part of a
reasonable plan to help plaintiff to overcome his mental health problems in the long3

term, which outweighs the immediate risks. The empirical basis and medical soundness
of this plan is the sort of factual question that a neutral expert may well be helpful in
evaluating.

Indeed, the question probably cannot be rationally decided without an

expert’s guidance, in which case it will be necessary to have more than one perspective.
See Ledford, 105 F.3d at 358–59 (7th Cir. 1997) (distinguishing between deliberate
indifference cases where an expert is unnecessary and those where the jury must consider
“complex questions concerning medical diagnosis and judgment”).
Finally, defendants express concern that an independent expert would intrude
upon the adversarial system and present a risk that the court will give the expert’s
opinion undue weight. But these risks are present every time such a neutral expert is
appointed, and yet the practice continues to be approved in the appropriate case.
Moreover, given the plaintiff here is an impoverished inmate, even if an intelligent and
capable one, with limited individual resources to join battle with the Wisconsin
Departments of Correction and Justice in the sort of fully adversarial contest envisioned
by our legal system, the court is not overly concerned about the impact of an
appointment on the adversarial system.

While the concern that a neutral expert’s

opinions may be given undue weight is more justified, and is something that the court
will endeavor to keep in mind during these legal proceedings, neither concern is sufficient
to dissuade the court in its belief that the appointment of a neutral expert may be
beneficial to a just, fair and efficient resolution of this dispute.

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B.

Apportioning of Costs

Federal Rule of Evidence 706(b) “grants a district court the discretion to
apportion all the costs of an expert to one side.” Ledford, 105 F.3d at 360. The court
suggested apportioning all costs to defendants in light of plaintiff’s impoverished state,
but defendants now argue that plaintiff should bear some of the financial burden. This is
a fair point, even though plaintiff has only $238.26 in his prisoner trust account and
receives average monthly deposits of only $13.78, and the court looks to 28 U.S.C. §
1915(b) for guidance in this circumstance. Section 1915(b) applies in civil cases brought
by prisoners and allows the court to take 20 percent of a prisoner’s six-month average
monthly balance when a case is filed, and levy a 20 percent tax on monthly income until
the full filing fee is paid off. Rather than undertake the administrative headache of a
monthly payment system, the court will assess a 50%, one-time tax on plaintiff’s current
trust account to help pay the upfront costs of retaining an appropriate expert. Should
plaintiff ultimately prevail, no additional payment will be required. Should defendants
ultimately prevail, the court will continue to levy a 10% charge against plaintiff’s account
until he has repaid his one-half share of the expert’s fees up to the maximum amount of
$5,000.

C.

Selection of the Expert

Given that both sides have suggested possible neutral experts, the court will
consult them and appoint a neutral expert acceptable to both.

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ORDER
IT IS ORDERED that:
(1) the court will appoint an independent expert in the field of psychiatry to assist
in this case; and
(2) plaintiff will be assessed at one-time 50% tax on his prison account to help pay
the expert’s costs, and defendants will be responsible for the remainder up
front. Should plaintiff ultimately prevail, no additional payment will be
required. Should defendants ultimately prevail, the court will continue to levy
a 10% charge against plaintiff’s account until he has repaid his one-half share
of the expert’s fees up to the maximum amount of $5,000.
Entered this 21st day of March, 2013.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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