Winger v. Doe

MARK WINGER,

#K97120,

Plaintiff,

Case No. 19-cv-00236-SPM

v.

ROB JEFFREYS, et al.,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

This matter is currently before the Court on a Motion Requesting a Court Appointed Expert

Witness (Doc. 114) filed by pro se Plaintiff Mark Winger. Defendants filed a Joint Response

requesting the Court to deny the Motion. (Doc. 115). Also, before the Court are two motions

requesting additional time to respond to discovery requests filed by Defendants Asselmeier,

Jeffreys, Meeks, and Runge. (Docs. 117, 118). For the following reasons, the Motion Requesting

a Court Appointed Expert Witness is denied, and the Motions for Extension of Time are granted.

MOTION REQUESTING A COURT-APPOINTED EXPERT WITNESS

Winger requests for the Court to appoint an expert witness “who specializes in the field of

dentistry and who is knowledgeable in the standards of care set and established by the American

Dental Association.” (Doc. 114-1, p. 3). He states that an expert would “be an essential part” of

presenting his case and opposing any motions for summary judgment filed by Defendants. (Id. at

p. 7). Winger argues that an expert will assist the Court and jury in understanding the issues by (1)

demonstrating the standard of care and how Defendants deviated from it; (2) looking over various

policies and practices implemented by the Illinois Department of Corrections, written or unwritten,

and forming an opinion as to whether such policy regarding crown procedures exists; and (3)

clarifying issues regarding leadership vacancies and insufficient sick call procedures that result in

Winger claims he is indigent and cannot afford to pay an expert. (Id. at p. 9). He also states that

because of COVID-19 library access is limited, making researching available experts difficult.

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

the trier-of-fact in evaluating complex information. Ledford v. Sullivan, 105 F.3d 354, 358-359

(7th Cir. 1997). However, as the Seventh Circuit has pointed out, Rule 706 “allows appointment

of an expert witness if necessary to help the court understand the issues, not to assist a party in

preparing his case.” Dobbey v. Carter, 734 F. App’x 362, 364-65 (7th Cir. 2018). See also Turner

v. Cox, 569 F. App’x 463, 468 (7th Cir. 2014). An expert should not be appointed simply to help

a party prove his case. Additionally, there is no statutory provision or constitutional right that

directs the appointment of an expert witness at government expense to present evidence or testify

on a litigant’s behalf. See Brown v. United States, 74 F. App’x 611, 614-15 (7th Cir. 2004).

Winger claims that Defendants acted with deliberate indifference by provided inadequate

dental treatment for his loose and eventually lost crown and implementing unconstitutional

procedures and policies regarding dental care and crown replacement in violation of the Eighth

Amendment. (Doc. 97, p. 5). Generally, a deliberate indifference claim 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. See also Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008);

Watts v. Monroe, No. 15-cv-0778, 2017 WL 2794286, at *5 (S.D. Ill. June, 28, 2017) (expert

testimony not necessarily required for a deliberate indifference claim); Hayes v. Snyder, 546 F. 3d

1068, 1072 (7th Cir. 2008) (a plaintiff does not have to prove that his complaints of pain were

“literally ignored,” but only that “the defendants’ responses to it were so plainly inappropriate as

to permit the inference that the defendants intentionally or recklessly disregarded his needs.”).

would be required for a trier-of-fact to understand the evidence. It appears that Winger requires an

expert to help in evidence gathering and preparing his case, rather than to explain the evidence that

will be presented. Because Winger is not entitled to have an expert witness at government’s

expense “in order to establish a fundamental element of his case[,]” Brown, 74 F. App’x at 614,

the motion is denied.

Going forward, if Winger is having difficulty meeting discovery or summary judgment

deadlines, he is advised that he may always file a motion requesting additional time so that he may

conduct sufficient research, request any relevant documents from Defendants, and prepare

appropriate responses. He may also file a motion for recruitment of counsel. When filing a motion

for counsel, Winger must demonstrate that (1) he is indigent; (2) he has made a reasonable attempt

to obtain counsel on his own or has been precluded from doing so; and (3) given the difficulty of

the case, he is not capable of representing himself. See Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.

2007); 28 U.S.C. § 1915(e)(1).

MOTIONS FOR EXTENSION OF TIME

The Motions for Extension of Time are granted. (Docs. 117, 118). Dr. Asselmeier shall

have until November 28, 2020, to respond to Winger’s Interrogatories and Request for Production

dated September 29, 2020. Runge, Jeffreys, and Dr. Meeks shall also have until November 28,

2020, to respond to Winger’s Interrogatories and Request for Production dated September 29,

2020.

IT IS SO ORDERED.

DATED: October 29, 2020

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge