Opinion

Ayoubi v. Wexford health Sources, Inc.

Court
District Court, S.D. Illinois
Filed
May 21, 2020
Cited by
0 cases
Authority
More cited than 21.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

FIRAS M. AYOUBI,

#R66956,

Plaintiff,

v. Case No. 18-cv-01689-NJR

WEXFORD HEALTH SOURCES, INC.,

CHRISTINE BROWN,

SCOTT THOMPSON,

DR. ALBERTO BUTALID,

DR. PERCY MYERS,

DR. STEPHEN RITZ, and

ALISA DEARMOND,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Firas Ayoubi, an inmate of the Illinois Department of Corrections, brings this civil

rights action pursuant to 42 U.S.C. § 1983 for the violation of his Eighth Amendment rights

regarding the treatment of his neurological condition and associated pain. Before the Court

are several motions filed by Ayoubi: a Motion for Appointment of Neutral Expert in

Neurology and Order for Physical Examination (Doc. 131), a Motion to Commence Discovery

(Doc. 163), and a Motion for Leave to Submit Bill of Costs (Doc. 164).

MOTION FOR APPOINTMENT OF NEUTRAL EXPERT

Ayoubi asks the Court to appoint a neutral expert, a neurologist, to conduct an onsite

physical evaluation of him pursuant to Federal Rule of Evidence 706 and Federal Rule of Civil

Procedure 35. (Doc. 131). Ayoubi argues that the Court stated it would be amenable to

ordering Dixon Correctional Center to allow a neurologist to come and evaluate him. He

states he has no money to afford more neurologists, and an evaluation by a neurologist would

be advantageous for all the parties and the Court in providing a better understanding of his

condition.

Defendants Wexford, Dr. Butalid, Dr. Myers, Dr. Ritz, and Dearmond filed a response

in opposition. (Doc. 138). They argue that neither rule cited to by Ayoubi permits the Court

to order an evaluation for his own benefit. Rule 35 allows the Court to direct an opposing

party to make himself available for an examination, not appoint a medical expert at Ayoubi’s

request to examine himself. (Id. at p. 2). Additionally, Rule 706 is to aide that trier-of-fact to

understand complex information, and a deliberate indifference claim, as Ayoubi is alleging,

is “not so complicated that an expert [is] required to establish [Plaintiff’s] case.” (Id. at p. 3)

(quoting Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir. 1997)). Finally, they claim that the

motion is an attempt by Ayoubi to evade the Court’s Order denying his motion for a

preliminary injunction, which sought a referral to a neurologist. (Id. at p.4).

Ayoubi filed a reply arguing that (1) Defendants downplay the complexity of his

condition; (2) he is requesting a neutral expert chosen by the Court, not his own expert; and

(3) a neutral evaluation and report would be advantageous to all parties, as Defendants have

been unable to properly diagnose him. (Doc. 148).

Federal Rule of Evidence 706(a) gives the Court discretion to appoint a neutral expert

to assist the Court in evaluating complex information or sort through conflicting evidence.

See Ledford, 105 F.3d at 357; DeJesus v. Godinez, 720 F. App’x 766, 772 (7th Cir. 2017); Elcock v.

Davidson, 561 F. App’x 519, 524 (7th Cir. 2014). Although Ayoubi argues that his condition is

complex and a neutral expert would help the Court “identify what the appropriate course is

to take and what really his condition could be” (Doc. 148, p. 4), he is essentially asking for the

Court to appoint an expert to help him establish the elements of his claim. Because his claim

is one of deliberate indifference, it does “not demand that the [trier-of-fact] consider probing,

complex questions concerning medical diagnosis and judgment.” Ledford, 105 F.3d at 359. The

Seventh Circuit has stated that an expert is not necessarily needed to prove deliberate

indifference, as it is not like medical malpractice which “delves into reasonable standards of

medical care.” Id. While Magistrate Judge Sison previously stated, “to the extent that Ayoubi

is able to obtain his own expert to review his condition, the undersigned would have no

problem entering an order to allow any such expert into Dixon to examine Ayoubi[,]” (Id. at

p. 7) (emphasis added), the Court does not need to appoint an expert to explain the symptoms

that Ayoubi is experiencing and whether Defendants’ knew of and disregarded a risk to his

health or safety. See also Turner v. Cox, 569 F. App’x 463, 468 (7th Cir. 2014).

Furthermore, Federal Rule of Civil Procedure 35 “does not vest the court with the

authority to appoint an expert to examine a party wishing an examination of himself. Rather,

under appropriate circumstances, it would allow the court to order a party to submit to a

physical examination at the request of an opposing party.” Brown v. United States, 74 F. App’x

611, 614 (7th Cir. 2003).

Accordingly, the Court denies Ayoubi’s request to be evaluated by a neutral expert

pursuant to Federal Rule of Evidence 706 and Federal Rule of Civil Procedure 35.

MOTION TO COMMENCE DISCOVERY

Ayoubi’s motion asking the Court to commence discovery is granted (Doc. 163), and

a scheduling and discovery order on the merits will be entered separately.

MOTION FOR LEAVE TO SUBMIT BILL OF COSTS

Ayoubi asks for leave to submit a detailed bill of costs in order to recover the costs

associated with responding to Defendants’ motion for summary judgment for failure to

exhaust administrative remedies. (Doc. 164). Federal Rule of Civil Procedure 54(d) permits a

prevailing party in a civil action to recover costs, other than attorney’s fees. “A litigant is a

prevailing party when he has obtained a judgment on the merits....” Dupuy v. Samuels, 423 F.

3d 714, 719 (7th Cir. 2005). Because this suit has not concluded and Ayoubi has not received

a favorable judgment on the merits, the motion is premature and denied without prejudice.

DISPOSITION

For the reasons stated above, the Motion for Appointment of Neutral Expert in

Neurology and Order for Physical Examination is DENIED (Doc. 131), the Motion to

Commence Discovery is GRANTED (Doc. 163), and the Motion for Leave to Submit Bill of

Costs is DENIED (Doc. 164). A scheduling order setting deadlines for discovery and

dispositive motions shall be entered in a separate order.

IT IS SO ORDERED.

DATED: May 21, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 4 of 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.