United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION FOR RECONSIDERATION, DENYING
MOTION FOR THE COURT TO APPOINT AN EXPERT, AND DENYING MOTION
FOR ASSISTANCE WITH RECRUITING COUNSEL
EVANS BARKER, JUDGE
Motion for Reconsideration
Jeffrey Allen Rowe's motion for reconsideration, dkt.
, is granted to the extent the Court
will now reconsider Mr. Rowe's request for the Court to
appoint a Rule 706 neutral expert filed November 1, 2017.
Motion for the Court to Appoint an Expert
Rowe 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
right thumb injury and that certain defendants committed
medical malpractice. 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
denied at this time. The Court will
reconsider, sua sponte, the motion for the Court to
appoint a Rule 706 expert when briefing for summary judgment
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).
claims in this case are that: (1) Defendants Wehrley,
Beitler, Dr. Ippel, Miller, Coomer, Dillow, Brubaker, Glover,
and Corizon violated his Eighth Amendment rights by being
deliberately indifferent to his serious medical needs by
delaying or failing to provide treatment for the soft tissue
injury to his right thumb causing excruciating pain and
limited mobility; (2) Beitler and Coomer were negligent in
their duty to see Mr. Rowe within 24 hours of receiving a
Request for Health Care; (3) Dr. Ippel, Brubaker and Glover
committed medical malpractice; (4) Dillow was negligent for
failing to promptly schedule a requested chronic care visit;
and (5) Corizon has a policy, practice, or custom of
providing untimely and inadequate medical care to prisoners.
See dkt. 49.
Rowe argues that a Rule 706 expert is necessary in order to
achieve “approximate parity” in the case (dkt. 54
at 2, dkt. 57 at 2), and so that he can “utilize the
Court's expert to further his case/claims” (dkt. 57
at 2). Defendants object to Mr. Rowe's attempt to utilize
the Court's resources by requesting a Court-appointed
“neutral” expert for his own personal use.
See dkt. 56 at 3, 5. They further respond that an
independent expert is not necessary to substantiate Mr.
Rowe's claims of thumb pain as pain complaints are
completely subjective and only Mr. Rowe can testify as to
whether he experienced pain. Dkt. 56 at 3. Moreover,
defendants argue that the issues in this case are not so
complex as to require an expert as the medical issues (soft
tissue injury to thumb) are not complicated, and the medical
records and Mr. Rowe's own testimony are sufficient to
present his case. Id. at 5.
time, the Court has not yet determined whether the issues in
this case are so complex as to require the assistance of
expert testimony. For example, determining deliberate
indifference is generally not so complicated that an expert
is required. See Ledford v. Sullivan, 105 F.3d 354,
358-59 (7th Cir. 1997). Moreover, “expert testimony is
not necessary to explain symptoms [such as pain from an
injured right thumb] that can be understood by a
layperson.” Elcock, 561 F. App'x at 524
(Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004)).
Finally, the Court notes that in its experience, expert
witness fees are often more than $10, 000 and in this case,
Mr. Rowe's malpractice claims seek less than $10, 000.
See dkt. 59 at 4 n. 3.
Court takes judicial notice that the deadline for filing
dispositive motions is soon- April 2, 2018. See dkt.
64. Thus, the Court will reconsider the necessity of a Rule
706 expert at the completion of briefing on any summary
judgment motions that are filed. At that time, the Court will
better understand whether an expert is needed to “help
sort through conflicting evidence” or to add
understanding to the case. See Turner, 569 F.
App'x at 468 (internal citations omitted).
Mr. Rowe's request for the Court to appoint a medical
expert, dkt. , is denied at this time.
Motions for Assistance with Recruiting Counsel
Rowe's motions for assistance with recruiting counsel,
dkts.  and , are denied. Pursuant to
28 U.S.C. § 1915(e)(1), courts are empowered only to
“request” counsel. Mallard v. United States
District Court, 490 U.S. 296, 300 (1989). The Court does
not have enough lawyers willing and qualified to accept a pro
bono assignment in every pro se case. As a result, this Court
has no choice but to limit appointment of counsel to those
cases in which it is clear under the applicable legal test
that the plaintiff must have the assistance of a lawyer.
confronted with a request . . . for pro bono counsel, the
district court is to make the following inquiries: (1) has
the indigent plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if
so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). The court
must deny “out of hand” a request for ...