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Coleman v. United States

United States District Court, S.D. Indiana, Terre Haute Division

April 5, 2017

LAWRENCE COLEMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Cristina A. Costa TAFT STETTINIUS & HOLLISTER LLP

          Jonathan G. Polak TAFT STETTINIUS & HOLLISTER LLP

          Tracy Nicole Betz TAFT STETTINIUS & HOLLISTER LLP

          Jonathan A. Bont UNITED STATES ATTORNEY'S OFFICE

          ORDER TO SHOW CAUSE PURSUANT TO FEDERAL RULE OF EVIDENCE 706

          Hon. Jane Magnus-Stinson, Chief Judge

         This matter is before the Court on Plaintiff's Motion for Approval of Enlarged Budget [Filing No. 101], requesting that the Court provide funds for the retention of an expert witness. For the following reasons, the Court orders the parties to show cause why the Court should not appoint a neutral expert witness to consider the medical issues raised by Plaintiff's lawsuit.

         I. Background

         This matter involves Plaintiff Lawrence Coleman's allegations he received deficient medical treatment for genital warts while incarcerated at the Federal Correctional Institute in Terre Haute, Indiana. [Filing No. 1.] Mr. Coleman, initially proceeding pro se, filed his claims under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). [Filing No. 1.] The Court granted summary judgment for Nurse Smith on Mr. Coleman's Bivens claim [Filing No. 34] and recruited counsel to prosecute the remaining FTCA medical malpractice claim [Filing No. 72]. Mr. Coleman, by his recruited counsel, now moves the Court to provide funding totaling $19, 040 to, among other things, retain an expert witness for this matter. [Filing No. 10.]

         II. Discussion

         This Court lacks the funds to provide expert witnesses for every indigent litigant requiring such services. Notwithstanding this reality, Federal Rule of Evidence 706 provides an avenue for the Court to appoint and apportion the costs for a neutral expert witness. Fed.R.Evid. 706; Turner v. Cox, 569 F. App'x 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 . . . .” (internal citation omitted)). The Seventh Circuit has strongly encouraged district courts to consider appointing neutral experts in cases where an indigent plaintiff, pursuing a potentially meritorious claim, is virtually certain to fail due to his inability to oppose the defendant's retained expert. E.g., Rowe v. Gibson, 798 F.3d 622, 631-32 (7th Cir. 2015) (“Because of the profound handicaps under which the plaintiff is litigating and the fact that his claim is far from frivolous, we urge the district judge to give serious consideration to . . . appointing a neutral expert witness, authorized by Fed.R.Evid. 706, to address the medical issues in this case . . . .”).

         Indiana tort law provides the substantive standards for Mr. Coleman's FTCA case. Bowen v. United States, 570 F.2d 1311, 1316 (7th Cir. 1978). Indiana law requires a medical malpractice plaintiff to show that the defendant “(1) owed a duty to the plaintiff; (2) breached its duty by conduct falling below the standard of care; and (3) proximately caused a compensable injury through breach of that duty.” Jones v. United States, 2011 WL 61160, at *1 (S.D. Ind. 2011) (citing Whyde v. Czarkowski, 659 N.E.2d 625, 627 (Ind.Ct.App. 1995)).

         A neutral, court-appointed expert would be able to discuss the professional standard of care for treating Mr. Coleman's condition and opine on whether Defendant's conduct fell below that standard of care. Cf., e.g., Entry Regarding Request for Pre-Authorization to Incur Expenses and Directing Further Proceedings, Kelley v. Talbit, No. 1:15-cv-01529, ECF No. 57 (Jan. 23, 2017) (noting in Eighth Amendment deliberate indifference case that court-appointed neutral expert “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”). If the only expert in this matter were Defendant's retained expert, Mr. Coleman would likely be outresourced regarding such issues, without regard to the potential merit of his claim. Accordingly, the Court believes that it would be appropriate in this case to heed the Seventh Circuit's clear suggestion in Rowe and appoint a neutral expert witness under Rule 706.

         III. ...


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