United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING MOTION TO APPOINT RULE 706 NEUTRAL
Magntts-Stinson, Chief Judge
plaintiff brought this action pursuant to 42 U.S.C. §
1983 against the defendants alleging that they violated his
Eighth Amendment rights due to their deliberate indifference
to his Hepatitis C and resulting liver issues, along with the
pain associated with these conditions. Presently before the
Court is the plaintiff's motion for the Court to appoint
a neutral medical expert under Rule 706 of the Federal Rules
of Evidence. The defendants oppose this motion. For the
reasons explained below, the plaintiff's motion, dkt.
, is granted.
706 of the Federal Rules of Evidence permits the Court to
appoint a neutral expert witness “that the parties
agree on and any of its own choosing.” Fed.R.Evid.
706(a). The purpose of this rule is to allow the Court to
obtain neutral expert testimony when “scientific or
specialized knowledge will help the court to understand the
evidence or decide a disputed fact.” Elcock v.
Davidson, 561 Fed.Appx. 519, 524 (7th Cir. 2014). The
Court, however, “need not appoint an expert for a
party's own benefit or to explain symptoms that can be
understood by a layperson.” Turner v. Cox, 569
Fed.Appx. 463, 468 (7th Cir. 2014) (citations omitted). In
the interests of justice, the Seventh Circuit has recently
encouraged district courts to utilize Rule 706 in cases
involving prisoner medical claims. See, e.g.,
Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 941 (7th
Cir. 2015); Rowe v. Gibson, 798 F.3d 622, 632 (7th
aptly explained by the plaintiff, there are at least four
contested issues in this case involving complex medical
evidence: (1) the medical necessity of prescription pain
management during the several-month period it was withheld
from the plaintiff; (2) whether the drug Norco, which was
used for a period to treat the plaintiff's pain, is
contraindicated with the plaintiff's end-stage liver
disease; (3) whether the plaintiff is medically eligible to
have a liver transplant; and (4) whether the plaintiff's
incarceration makes a liver transplant medically appropriate.
Filing No. 83 at 4-5. The plaintiff's medical condition
and the appropriate treatment thereof is complicated, and it
would greatly benefit the Court in ruling on the
plaintiff's claims-whether at summary judgment or
trial-for a neutral expert to opine on these medical issues.
The defendants will undoubtedly rely on their own expert
testimony in support of their claims, and the Seventh Circuit
has made clear that the Court “can always appoint [its]
own expert [under Rule 706] to assist [the Court] in
understanding and evaluating the proposed testimony of a
party's expert.” ATA Airlines, Inc. v. Federal
Exp. Corp., 665 F.3d 882, 889 (7th Cir. 2011). Moreover,
these medical conditions, and what constitutes the
appropriate treatment of them, are not easily
“understood by a layperson.” Turner, 569
Fed.Appx. at 468. The Court, therefore, concludes that
utilization of a Rule 706 expert is the best course in this
defendants set forth several objections to the appointment of
a neutral expert under Rule 706, none of which are ultimately
persuasive, and several of which merit some discussion.
First, the defendants argue that the plaintiff is
“asking for a supportive expert to help meet
his burden of proof, ” rather than a neutral one.
Filing No. 85 at 2. This not only is untrue, but is
nonsensical given that Rule 706 only permits the appointment
of neutral expert. See, e.g.,
Kennedy v. Huibregtse, 831 F.3d 441, 443
(7th Cir. 2016) (“The judge could also have appointed a
neutral expert witness under rule 706 . . .
.”) (emphasis added); Dobbey, 806 F.3d at 941
(suggesting that the district court on remand “exercise
authority, conferred . . . by [Rule] 706, to appoint a
neutral expert witness to advise on the medical
issues presented by the case”) (emphasis added).
fact that any expert appointed pursuant to Rule 706 is a
neutral expert also makes the defendants' rhetorical
questions in their brief border on the inappropriate. For
example, the defendants ask “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?” Filing No. 85 at
7. Another example: “does the Court force Corizon to
pay for experts until it finds one that is favorable to
Plaintiff's case?” Filing No. 85 at 7. Such
questions not only imply that the Rule 706 expert may not be
neutral-which, as noted, reflects a complete misunderstanding
of Rule 706-but also that the Court itself might not be
neutral in its utilization of Rule 706. Such implications,
without any basis for them, are of course inappropriate.
Cf. In re Kelly, 808 F.2d 549, 551-52 (7th Cir.
1986) (noting that attorneys who make statements regarding
other lawyers and judges must be “scrupulous regarding
the accuracy of those statements”). Notably, the
defendants have not offered any example of Rule 706 being
utilized by this Court or any other in the manner they seem
to infer it will be.
questions are even more concerning given that another
District Judge of this Court has roundly criticized this line
of argument from Corizon in a recent decision:
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.
Kelly v. Talbit, 2017 WL 743885, at *2 (S.D. Ind.
the warning in this Entry and the similarly strong worded
rejection of Corizon's argument in Kelly, the
Court assumes that the inappropriate implications of this
line of argument will not be presented again by any of the
defendants in this or future cases.
the defendants argue at length that this Court should
“disregard” the Seventh Circuit's decision in
Rowe because “if applied, it would place an
absurd and unworkable burden on this Court” and
“would create an absurd and unfair result for the
Defendants.” Filing No. 85 at 4-7. It should go without
saying that this Court cannot “disregard” circuit
precedent. See, e.g., Hart v. Wal-Mart Stores,
Inc. Assoc. Health & Welfare Plan, 360 F.3d 674, 680
(7th Cir. 2004) (“In this case, as in all others, the
district court is required to follow a binding precedent of a
superior court, and it abused its discretion in declining to
do so.”) (citation and quotation marks omitted). Even
if there is no specific holding in Rowe that
requires the Court to appoint a neutral expert in this case,
the Court of course takes the reasoning in Rowe and
other Seventh Circuit opinions seriously. It does so in
concluding here that a Rule 706 expert is appropriate in this
the defendants argue that Rowe is inapplicable
because the plaintiff here, unlike in Rowe, is not
pro se. As an initial matter, this is only true because the
Court recruited pro bono counsel to represent the plaintiff
in this action pursuant to Local Rule 87. But even if this
were not true, the Seventh Circuit's exhortations in
Rowe and other cases to appoint a neutral Rule 706
expert in cases such as this one are not limited to
circumstances in which the plaintiff is pro se. Indeed, the
Seventh Circuit in Rowe explicitly suggests that
recruiting counsel for a pro se litigant and appointing a
neutral Rule 706 expert may both be appropriate.
See Rowe, 798 F.3d at 631-32 (“[W]e urge the
district judge to give serious consideration to recruiting a
lawyer to represent Rowe; appointing a neutral expert
witness, authorized by Fed.R.Evid. 706, to address the
medical issues in the case; or doing both.”)
(citations omitted) (emphasis added).
most if not all of the defendants' remaining arguments
against the appointment of a neutral Rule 706 expert are
premised on the argument that the plaintiff does not
need one. But again, the Court does not appoint a neutral
Rule 706 expert to assist the plaintiff, but to assist the
Court. A neutral Rule 706 expert's “scientific or
specialized knowledge will help the court to understand the
evidence or decide a disputed fact, ” Elcock,
561 Fed.Appx. at 524, and can specifically aid in the
Court's understanding of complex medical conditions,
see Jackson v. Pollion, 733 F.3d 786, ...