United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS, UNITED STATES DISTRICT JUDGE.
James Melvin Cramer, an inmate of the Florida Department of
Corrections, who is represented by appointed counsel, is
proceeding on an Amended Civil Rights Complaint (Doc. 14;
Amended Complaint) pursuant to 42 U.S.C. § 1983.
Plaintiff claims Defendants were deliberately indifferent to
his serious medical needs in violation of the Eighth
Amendment in the administration of an antibiotic, gentamicin,
prescribed to treat an infection. Amended Complaint at 6,
this Court are the following motions: (1) Plaintiff's and
Defendant Beiser's Joint and Unopposed Motion to Dismiss
Defendant Dr. Christopher Beiser With Prejudice (Doc. 125;
Dismissal Motion); (2) Plaintiff's Renewed Motion to
Apportion Costs of Court-Appointed Expert, Dr. Loren J.
Bartels, and for Limited Appointment of Dr. Donald C. Kern
and Apportionment of His Costs (Doc. 119; Expert Appointment
Motion); (3) Plaintiff's Motion for Leave to Propound and
to Compel Answers to Counsel-Drafted Interrogatories (Doc.
110; Discovery Motion); and (4) Plaintiff's Consent
Motion for Extension of Scheduling Order Dates (Doc. 127;
Extension Motion). Before addressing the three substantive
motions, the Court notes that the Extension Motion is due to
be granted as set forth in its decretal below.
and Defendant Beiser move the Court to enter an order
dismissing Dr. Beiser with prejudice pursuant to either Rule
21 or Rule 41(a)(2), Federal Rules of Civil Procedure. The
Dismissal Motion is due to be granted. Because the parties
seek a dismissal with prejudice as to all claims against Dr.
Beiser, the Court finds the more appropriate authority is
grounded in Rule 41(a)(2), not Rule 21 (permitting a court to
“drop a party” at any time). See Klay v.
United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir.
2004) (“Rule 41 allows a plaintiff to dismiss all of
his claims against a particular defendant.”); see
also Schoenfeld v. Babbitt, 168 F.3d 1257, 1265 (11th
Cir. 1999) (observing that plaintiff voluntarily dismissed
one of three defendants under Rule 41 prior to the
court's entry of final judgment as to the claims against
the other two defendants). The dismissal of Dr. Beiser moots
Plaintiff's pending Expert Appointment Motion and
Discovery Motion as to him but does not affect the
Plaintiff's claims or pending motions against Defendants
Armand Smith and Jorge Caraballo.
Expert Appointment Motion
Expert Appointment Motion, Plaintiff seeks an order (1)
apportioning accrued costs of court-appointed expert Dr.
Bartels (for his review of medical records and preparation of
his email report), one-third to Plaintiff and two-thirds to
Defendants Smith and Jorge Caraballo; (2) apportioning future
costs of court-appointed expert Dr. Bartels, 100% to
Defendants or, alternatively, one-quarter to
Plaintiff and three-quarters to Defendants; (3) appointing
Dr. Donald C. Kern as a neutral expert under Rule 706
“for the limited purpose of . . . evaluat[ing] whether
the acts and omissions of Defendants in administering
gentamicin to Plaintiff . . . constituted deliberate
indifference to the risks of Plaintiff suffering
injuries”; (4) and apportioning costs of Dr. Kern's
expert fees in accordance with his findings. See
Expert Appointment Motion at 1-2. In support of his Expert
Appointment Motion, Plaintiff provides the email report Dr.
Bartels prepared (Doc. 119-1; Bartels Report).
filed a Response to Plaintiff's Expert Appointment Motion
(Doc. 123; Def. Resp.), asserting that appointment of an
additional expert is not necessary “for this medical
deliberate indifference case because the objective inquiry of
standard of care is not pertinent to the subjective
standard”; claiming that Plaintiff is inappropriately
using Rule 706 to fund his litigation; and disputing the
Plaintiff's proposed apportionment of expert costs.
See Def. Resp. at 4, 5-6, 8. Defendants also state
that Dr. Bartels has not answered the question posed to him:
whether the administration of gentamicin caused Plaintiff to
suffer a serious medical need. Id. at 2.
Appointment of Dr. Kern as a Neutral Expert under Rule
pertinent part, Rule 706 states,
On a party's motion or on its own, the court may order
the parties to show cause why expert witnesses should not be
appointed and may ask the parties to submit nominations. The
court may appoint any expert that the parties agree on and
any of its own choosing. But the court may only appoint
someone who consents to act.
Fed. R. Evid. 706(a). Expert testimony is appropriate when
“the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue.” Fed.R.Evid. 702. The decision as to whether to
appoint an expert “is vested in the sound
discretion” of the district court. Quiet Technology
DC-8, Inc. v. Hurel-Dubois UK, Ltd., 326 F.3d 1333, 1349
(11th Cir. 2003). The Court is obliged to fairly consider the
request to appoint an expert and provide a reasoned
explanation for its decision. Steele v. Shah, 87
F.3d 1266, 1271 (11th Cir. 1996). In doing so, the Court is
mindful of its responsibility to ensure that the “goal
is not to assist a particular party, but to assist the
fact-finder.” Shipman v. United States, No.
5:15cv133/MP/CJK, 2016 WL 4992104, at *9 (N.D. Fla. June 6,
2016), report and recommendation adopted by No.
5:15-cv-00133-MP-CJK, 2016 WL 5024224 (N.D. Fla. Sept. 15,
Eighth Amendment claim for deliberate indifference may not be
sustained where a plaintiff demonstrates conduct that amounts
to negligence. Campbell v. Sikes, 169 F.3d 1353,
1363 (11th Cir. 1999). “To prevail on a deliberate
indifference to serious medical need claim, Plaintiffs must
show: (1) a serious medical need; (2) the defendants'
deliberate indifference to that need; and (3) causation
between that indifference and the plaintiff's
injury.” Mann v. Taser Int'l, Inc., 588
F.3d 1291, 1306-07 (11th Cir. 2009). The Supreme Court has
articulated a subjective deliberate indifference test that
requires a plaintiff to prove a defendant acted with “a
sufficiently culpable state of mind.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). To satisfy the
subjective component, a plaintiff must prove the following:
“(1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than
[gross] negligence.” Townsend v. Jefferson
Cty., 601 F.3d 1152, 1158 (11th Cir. 2010).
“Whether a [defendant] had the requisite knowledge of a
substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a
[defendant] knew of a substantial risk from the very fact
that the risk was obvious.” Farmer 511 U.S. at
842 (internal citations omitted).
Eleventh Circuit has recognized that expert testimony may
constitute permissible circumstantial evidence to demonstrate
the subjective component in a deliberate indifference case.
See Steele, 87 F.3d at 1269, 1271 (citing
Farmer, 511 U.S. at 842). In Steele, the
court stated that “the quality of [medical] care one
receives can be so substantial a deviation from accepted
standards as to evidence deliberate indifference to 
serious [medical] needs.” Id. at 1269. There,
the court reversed entry of summary judgment in the
defendant's favor, holding the jury could have concluded
that the defendant “knew of a substantial risk from the
very fact that the risk was obvious.” Id. at
1270. The court specifically instructed the district court to
reconsider, on remand, plaintiff's motion to appoint an
expert “to [e]nsure a just resolution of the
claim.” Id. at 1271. Accord German v.
Broward Cty. Sheriff's Office, 315 Fed.Appx. 773,
777-78 (11th Cir. 2009) (recognizing, as dicta, that
“the appointment of a medical expert may be
warranted” to determine whether defendants were
deliberately indifferent to a serious medical need, which
plaintiff argued concerned medical issues beyond the
understanding of a lay person). See also Rogers v.
Evans, 792 F.2d 1052, 1062 (11th Cir. 1986)
(“Whether [administration of a medication] was a matter
of gross incompetence, negligence, or medical judgment is
disputed and a proper subject of expert
case, the court will be called upon to decide a question
similar to the one at issue in Rogers: whether the
administration of a drug was within acceptable standards or
“was so wide of the mark as to be far below the minimum
standards of medical care.” Cf. Rogers, 792
F.2d at 1060. Because an answer to this question is not
within a layperson's common knowledge, this case is
distinguishable from the Seventh Circuit opinion relied upon
by Defendants. See Ledford v. Sullivan, 105 F.3d
354, 359 (7th Cir. 1997). The plaintiff in Ledford
claimed the defendants were deliberately indifferent to a
serious medical need when they prevented him from taking a
prescribed medication (Zoloft) for eleven days. Id.
at 355-56. The court held that the trial court acted within
its discretion in denying plaintiff's motion to appoint
an expert under Rule 706 because the facts and issues in that
case were not so complex as to warrant expert testimony.
Id. at 359. Because the plaintiff experienced
symptoms of which most lay people have an understanding or
familiarity (dizziness, nausea, vomiting, skin crawling),
expert testimony was not necessary to enable the jury to
decide whether those symptoms caused a life-threatening
condition or a risk of permanent impairment. Id. at
the side effects experienced when abruptly stopping a
commonly-prescribed oral medication such as Zoloft, risks
associated with the administration of an IV antibiotic used
to treat an infection in a patient with documented renal
problems is not within the common knowledge of those not
trained in medicine. Cf. id. Moreover, the
Ledford opinion does not stand for the proposition
that medical expert testimony is never appropriate in a
deliberate indifference case. And, more importantly, the
Eleventh Circuit has not gone so far as to impose such a
limitation, but has merely cautioned that an expert's
testimony must do more than permit a conclusion that a
defendant medical provider should have been aware of
a risk but failed to appreciate it. Campbell, 169
F.3d at 1371. “Allowing expert testimony that
[defendant] should or would have known [of a risk] . . .
would nullify Farmer's requirement of subjective
mental intent.” Id. at 1370-71.
Campbell, the court noted that the parties'
retained experts offered contrary opinions with respect to
whether defendants knew they provided grossly incompetent
care; thus, the expert opinions did “not provide the
missing link” as to the defendants' subjective
mental intent. Id. at 1372. The Court implied,
however, that expert testimony may provide circumstantial
evidence of a defendant's subjective knowledge in
appropriate cases, recognizing the reality that “rarely
if ever will a defendant medical professional admit that he
knew his course of treatment was grossly inadequate.”
Id. at 1371-72 (citing with approval
Steele). See also Weathers v. Lanier, No.
4:05-CV-11-RLV, 2007 WL 3046465, at *2 (N.D.Ga. Oct. 12,
2007) (holding that while the Eleventh Circuit, in
Campbell, came close to absolutely excluding expert
testimony on the subjective component, “it stopped just
short of that line”). Thus, the inquiry to appoint a
neutral expert under Rule ...