United States District Court, S.D. Indiana, Indianapolis Division
ENTRY REGARDING REQUEST FOR PRE-AUTHORIZATION TO
INCUR EXPENSES AND DIRECTING FURTHER PROCEEDINGS
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Richard Kelly's
Motion for Pre-Authorization to Incur Expenses. (Filing No.
56). Mr. Kelly's claims in this case are that he has
received constitutionally inadequate medical care for
degenerative disk disease in his lumbar and cervical spine
and degenerative bone disease in his hips. He alleges that
this has resulted in severe pain and a worsening of his
conditions. Pro bono counsel was recruited pursuant to Local
Rule 87 to represent Mr. Kelly for the purpose of assisting
him with discovery. Consistent with this representation,
counsel has filed an ex parte motion for pre-authorization to
incur expenses to retain an expert to testify regarding the
neurological and orthopedic standard of care for these
conditions. Because there is nothing necessarily private
about this motion, the clerk shall remove the ex parte
restriction from this filing. As explained below, the motion
is denied. Instead of authorizing payment for an expert to
testify on Mr. Kelly's behalf, the Court proposes the
appointment of a neutral expert consistent with Rule 706 of
the Federal Rules of Civil Procedure.
Kelly's Request for Expert Testimony
Kelly's claims are that he received constitutionally
inadequate medical care for his serious medical conditions.
Analysis of these claims will require understanding of his
conditions and the proper treatment of those conditions. To
prevail in this case, Mr. Kelly will have to show: (1) he
suffered from an objectively serious medical condition; and
(2) the defendant knew about his condition and the
substantial risk of harm it posed, but disregarded that risk.
Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Pittman ex rel. Hamilton v. County of Madison, Ill.,
746 F.3d 766, 775 (7th Cir. 2014). Mr. Kelly's
allegations of ongoing pain and bone and nerve degeneration
appear at this time to be objectively serious medical
conditions. However, to show that the defendants were
deliberately indifferent to these conditions, Mr. Kelly will
have to show that the defendants failed to act or took
“woefully inadequate action.” Reed v.
McBride, 178 F.3d 849, 854 (7th Cir. 1999) (citing
Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir.1998)).
In other words, Mr. Kelly will be able to prove his claims if
the defendants' decisions were “so far afield of
accepted professional standards as to raise the inference
that [they were] not actually based on a medical
judgment.” Norfleet v. Webster, 439 F.3d 392,
396 (7th Cir. 2006). A neutral expert appointed under Rule
706 would be able to discuss the professional standards
related to Mr. Kelly's conditions and opine whether the
defendants' care for him departs far enough from the
standard of care to qualify as deliberately indifferent to
the risk of harm presented by his medical condition.
on the foregoing, the Court finds that medical expert
testimony may assist the Court in deciding Mr. Kelly's
claims. The Court will not at this time, however, fund the
hiring of an expert to testify on Mr. Kelly's behalf.
Instead, pursuant to Rule 706 of the Federal Rules
of Evidence, the Court proposes the appointment
of a neutral expert or experts to provide unbiased testimony
regarding the appropriateness of Mr. Kelly's treatment.
Court proposes the following procedure for the appointment of
a Rule 706 expert:
A. The expert(s) should be selected as follows: (1) each
party should submit to the other by a date certain 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 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; (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 a date certain. If they cannot reach an
agreement regarding the scope of the inquiry, they shall file
a motion asking the Court to determine the appropriate scope.
C. Once the expert has rendered an opinion, that opinion
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 above $7, 500 will be
borne by the defendants in the first instance. The parties
are reminded that the Court has discretion to award the
prevailing party 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).
the Court is acting on its own motion in proposing a Rule 706
expert, the parties shall have through February 3, 2017, in
which to either object to or agree to the proposed procedure
for the appointment of an expert or offer revisions to the