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Cramer v. Beiser

United States District Court, M.D. Florida, Jacksonville Division

July 13, 2018




         Plaintiff 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, 11-12.

         Before 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.

         I. Dismissal Motion

         Plaintiff 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.

         II. Expert Appointment Motion

         In the 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[1] 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).

         Defendants 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.

         A. Appointment of Dr. Kern as a Neutral Expert under Rule 706

         In 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, 2016).

         An 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).

         The 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 testimony.”).[2]

         In this 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 359-60.

         Unlike 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.

         In 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 ...

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