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Bradford v. Obaisi

United States District Court, N.D. Illinois, Eastern Division

September 3, 2019

GHALIAH OBAISI, et al. Defendants.

          Jorge L. Alonso District Judge



         Cleve 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.[1]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.

         I. BACKGROUND

         Bradford 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).

         At the 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).

         On 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.).[2] 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 fees.


         A party 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.

         “The 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. at 473.


         A. Requiring Bradford to pay defendants' expert costs would result in manifest injustice because Bradford is indigent

         Bradford 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 ...

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