United States District Court, S.D. Indiana, Indianapolis Division
ENTRY OVERRULING OBJECTION TO THE APPOINTMENT OF A
WALTON PRATT, JUDGE
January 23, 2017, the Court on its own, proposed that a
neutral expert be appointed in this case pursuant to Rule 706
of the Federal Rules of Evidence. (Dkt. 57).
Plaintiff Richard Kelly (“Mr. Kelly”) alleges
that Defendants Paul Talbit, M.D. (“Dr. Talbit”),
Houman Kiani, M.D (“Dr. Kiani”) and Mike Person,
M.D. (“Dr. Person”) (collectively the
“Defendants”), have been deliberately indifferent
to his need for treatment for degenerative disk disease in
his lumbar and cervical spine and degenerative bone disease
in his hips. Mr. Kelly filed a request that the Court
authorize him to incur expenses to retain an expert or
experts to testify regarding these conditions. Based on this
request, the Court proposed a procedure for the appointment
of a neutral expert that would provide a report to the Court
regarding these issues. Defendants object to the proposal.
(Dkt. 58). Mr. Kelly has filed a reply in support of the
proposal. (Dkt. 59). For the following reasons, the
Defendants' objections are overruled.
support of their objection to the appointment of a neutral
expert, Defendants argue that Mr. Kelly does not need an
expert and a neutral expert would be unfair and burdensome
Need for an Expert
to the extent that the defendants believe Mr. Kelly does not
need an expert to prove his claims, the Court finds that Mr.
Kelly's alleged spinal and hip conditions appear not to
be the types of conditions easily explained or understood by
a lay person. The Seventh Circuit has encouraged district
courts to consider the appointment of experts in such a
situation. See Rowe v. Gibson, 798 F.3d 622, 631-632
(7th Circ. 2015).
Unfairness to the Defendants
the Defendants argue that the appointment of a Rule 706
expert would be unfair to them. As an initial matter, the
Court emphasizes, as it did in the Entry proposing the
appointment of a Rule 706 expert, that the Court has
discretion to do so and to apportion the costs of the expert.
To the extent that Defendants argue that the appointment of a
neutral expert in this case sets a precedent for such an
appointment in every case, this assertion is not true. The
need for a Rule 706 expert must, of course, be made on a
case-by-case basis, and the Court makes no determination
whether such an appointment will be appropriate in other
cases not currently under consideration.
Defendants further speculate that if the appointment process
proposed in this case were applied in all cases, it would
result in over six million dollars of additional litigation
costs to Corizon, the Defendants' employer. This
conclusion is based on a misunderstanding of the number of
pro se prisoner cases that have been filed in this
Court based on allegations of deficient medical care. The
Defendants rely on the report (attached to the
defendants' objection at Dkt. 58-1) that 907 pro
se prisoner cases were filed in this Court during the
fiscal year ending September 30, 2016. But the Defendants
fail to understand that a large portion of the Court's
pro se prisoner cases are habeas petitions, not
civil rights cases like this one. Further, not all pro
se prisoner civil rights cases are based on allegations
of inadequate medical care. Many are based on allegations of
excessive force or violations of the First Amendment, among
other things. In other words, the Court did not have nearly
907 pro se prisoner cases last year based on
inadequate medical care. And of the cases that have been
brought based on alleged inadequate medical care, in only one
has the Court decided to appoint a neutral expert. The
determination of whether to make such an appointment is not
automatic, but is based on the Court's exercise of its
discretion in determining one would be helpful.
defendants also suggest a number of potential problems in the
appointment of a neutral expert. They state:
(1) if Corizon is forced to pay for a doctor to review the
case and the doctor's opinions are favorable to Corizon,
will the Court then dismiss the case and require the
Plaintiff to reimburse Corizon for the cost of the expert?
(2) 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? (3) does the Court force Corizon to pay for experts
until it finds one that is favorable to Plaintiff's case?
these questions are answered in the Court's order
proposing the appointment of a neutral expert. 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.
Burden on the Court
the Defendants argue that the appointment of a neutral expert
places too much of a burden on the court. The Defendants
propose that the Court disregard the strong suggestion in
Rowe and decline to appoint a neutral expert. But,
as the Defendants concede, the decision to do so is within
the Court's discretion. The Court is exercising it here.
To the extent that the Defendants assert that the appointment