United States District Court, N.D. Illinois, Eastern Division
L. Alonso District Judge
MEMORANDUM OPINION AND ORDER
JEFFREY CUMMINGS UNITED STATES MAGISTRATE JUDGE
Bradford (“Bradford”), an inmate at the Western
Illinois Correctional Center, brought this action against
Saleh Obaisi, M.D., F.A. Craig, D.D.S., J.F. Mitchell,
D.D.S., and Wexford Health Sources, Inc.
(“Wexford”) under the Eighth and Fourteenth
Amendments.Bradford alleges that defendants subjected
him to cruel and unusual punishment through their deliberate
indifference to his tooth and jaw pain that eventually
necessitated oral surgery. (Dckt. 115). Currently before the
Court is defendants' motion to compel Bradford to pay
fees associated with the March 8, 2019 deposition of
defendants' expert Dr. Michael Sullivan. Defendants'
motion (Dckt. 182) is denied for the reasons discussed below.
filed a handwritten complaint on August 15, 2016 while he was
housed at the Stateville Correctional Center in Joliet,
Illinois. Bradford alleged that he submitted a medical
request form on December 11, 2014 related to severe pain that
he was experiencing in his jaw and gums. Dental x-rays were
not taken until January 5, 2015, when it was determined that
Bradford needed to have his lower left wisdom tooth removed.
Dr. Craig - a dentist retained by defendant Wexford -
eventually extracted the tooth on February 10, 2015. (Dckt.
1). In his Third Amended Complaint, Bradford alleges that he
was not given any pain medication prior to the extraction
date and that Dr. Craig improperly left the root tip from the
tooth to “work itself out on its own” over time.
(Dckt. 115 at ¶ 21). Bradford alleges that he was only
given ineffective over-the-counter pain medication by Dr.
Craig and by defendant Dr. Mitchell on February 17, 2015.
(Id. at ¶ 29). On February 26, 2015, Bradford
was referred to a dentist not employed by Wexford who put him
under anesthesia and surgically removed the problematic root
tip. (Id. at ¶ 32).
same time that Bradford filed his pro se complaint,
he also submitted an application to proceed in forma
pauperis. The application states that Bradford received
$10 a month from the correctional center where he was
located, had no income, and currently had $12.64 in his
prison trust account. (Dckt. 3). Bradford also asked the
District Court to appoint counsel to represent him in this
matter. (Dckt. 4). On August 22, 2016, the District Court
granted the in forma pauperis application and
granted Bradford's motion to appoint counsel. (Dckt. 5).
March 3, 2017, the parties submitted a joint discovery plan
requiring defendants to disclose their expert witness by
February 28, 2018 and for Bradford to depose the expert by
March 20, 2018. (Dckt. 45). Defendants named Dr. Michael
Sullivan - a dentist who practices in Elmhurst, Illinois - as
their witness on December 7, 2018. Bradford named Dr. Don
Sauter as his expert. (Dckt. 187 at Ex. 1). Defendants
deposed Dr. Sauter on November 2, 2018, and Bradford deposed
Dr. Sullivan on March 8, 2019. (Id. at p. 3).
Bradford “covered the fees and costs relating to [Dr.]
Sauter's deposition, which totaled $3, 530.00.”
(Id.). Dr. Sullivan submitted an invoice for his
fees in the amount of $3, 746.23. The fees accounted for 3.5
hours of deposition time at the rate of $650 an hour; 2.5
hours of preparation time at the rate of $550 an hour; and
miscellaneous parking and mailing fees. (Dckt. 182 at Ex. 1).
Defendants forwarded Dr. Sullivan's invoice to Bradford
on April 18, 2019. On June 21, 2019, Bradford's counsel
sent an email to defendants stating that Bradford would not
pay Dr. Sullivan's fee because doing so would result in
“manifest injustice” under Rule 26(b)(4)(E).
(Dckt. 182 at Ex. 3). On July 19, 2019, defendants brought
this action to compel Bradford to pay Dr. Sullivan's
that seeks discovery from an opposing party's expert
witness is ordinarily required to pay the expert for the time
that he or she spends in responding to the request. Federal
Rule of Civil Procedure 26(b)(4)(E) provides:
Unless manifest injustice would result, the court must
require that the party seeking discovery: (i) pay the expert
a reasonable fee for time spent in responding to discovery
under Rule 26(b)(4)(A) or (D); and (ii) for discovery under
(D), also pay the other party a fair portion of the fees and
expenses it reasonably incurred in obtaining the expert's
facts and opinions.
language of the rule is mandatory, ” Se-Kure
Controls, Inc. v. Vanguard Prods. Group, 873 F.Supp.2d
939, 952 (N.D.Ill 2012), unless a court finds that enforcing
the fee requirements of Rule 26(b)(4)(E) would result in
manifest injustice. It is not entirely clear, however, what
manifest injustice means in this context. On the one hand,
the exception to the mandatory fee provision of Rule
26(b)(4)(E) involves a “stringent standard.”
Reed v. Binder, 165 F.R.D. 424, 427 (D.N.J. 1996).
On the other hand, what that standard includes has not always
been evident because the “case law interpretation of
this provision is sparse.” Harris v. San Jose
Mercury News, Inc., 235 F.R.D. 471, 473 (N.D.Cal. 2006);
see also See Delgado v. Sweeney, No. Civ. A 01-3092,
2004 WL 228962, at *1 (E.D.Pa. Jan. 6, 2004)
(“Unfortunately, there is no clear definition of
‘manifest injustice.'”). That said, most
courts have found that manifest injustice exists under Rule
26(b)(4)(E) either when (1) a plaintiff is indigent or (2)
requiring the plaintiff to pay an expert's fee would
create an undue hardship. See, e.g.,
Edin v. The Paul Revere Life Ins. Co., 188 F.R.D.
543, 547 (D.Ariz. 1999); see also Harris, 235 F.R.D.
Requiring Bradford to pay defendants' expert costs would
result in manifest injustice because Bradford is
asserts that requiring him to pay for Dr. Sullivan's
deposition costs would result in “manifest
injustice” because he is indigent and he points to his
in forma pauperis application, which states that he
had only $12.64 in his inmate trust account, to support his
argument. (Dckt. 187 at p. 2). Such a paltry sum clearly
suggests impoverishment but courts have been hesitant to
equate poverty with indigency under all circumstances.
See United States v. Shepherd, 922 F.3d 753, 758
(6th Cir. 2019) (stating that the fact that a litigant is
poor “does not tell us much” about the person in
question). Moreover, a person is not automatically indigent
for Rule 26(b)(4)(E) purposes merely because he or she is
unable to pay an ...