United States District Court, S.D. Illinois
Reona J. Daly United States Magistrate Judge
matter is now before the Court on Defendants' Joint
Motion to Bar Plaintiff's Expert and Request for an
Extension of the Dispositive Motion Deadline (Doc. 152). The
motion is GRANTED IN PART AND DENIED IN
Joseph Wilkins, a former inmate in the custody of the
Illinois Department of Corrections (“IDOC”),
filed this lawsuit pursuant to 42 U.S.C. §1983 alleging
his constitutional rights were violated while he was
incarcerated at Vandalia Correctional Center. In particular,
Plaintiff alleges he was deprived of appropriate and timely
dental care and retaliated against for filing grievances
seeking such care. Following a review of Plaintiff's
complaint pursuant to 28 U.S.C. § 1915A, Plaintiff is
proceeding in this action on the following claims:
Count One: Overall and Etchason retaliated against Plaintiff
for filing grievances by deliberately delaying dental
treatment and medication for Plaintiff's emergency dental
needs, pain, and suffering in violation of the First
Count Two: Townsend was deliberately indifferent to
Plaintiff's serious medical needs when he refused to
allow him to see the dentist to acquire more pain medication
after his pain medication ran out.
Count Three: Overall, Etchason, and Foster were deliberately
indifferent to Plaintiff's serious dental needs when they
ignored his request slips for treatment, delayed treatment,
refused to prescribe him pain medication, and refused to pull
his teeth on an emergency basis.
Court's initial scheduling and discovery order required
discovery to be completed by March 8, 2018 and dispositive
motions to be filed by April 5, 2018 (Doc. 49). Following the
close of discovery, Plaintiff was assigned counsel (Doc.
125). Plaintiff, through counsel, filed a motion to reopen
discovery that was granted in part, over Defendants'
objections (Doc. 147). Discovery was to be completed by May
31, 2019. The discovery deadline was extended to July 26,
2019 on motion by Defendants to allow the parties to conduct
depositions of the party Defendants and complete depositions
of two third-party witnesses (Doc. 151).
August 8, 2019, Defendants filed the motion to bar and extend
the dispositive motion deadline that is now before the Court
(Doc. 152). Plaintiff responded on August 9, 2019 (Doc. 153).
their motion, Defendants complain that Plaintiff disclosed a
retained expert, Dr. Sanford L. Barr, D.D.S., on July 26,
2019 at 4:32 p.m., just hours before the discovery cut-off.
Defendants assert that Plaintiff's expert should be
barred due to the late disclosure or, in the alternative,
that discovery should be extended five months to allow
sufficient time for Defendants to depose Dr. Barr and retain
a rebuttal expert if they choose. In their motion, Defendants
explain Plaintiff failed to supplement his answer to
interrogatory No. 11 to identify his retained expert despite
having a duty to do so. Further, Defendants assert
Plaintiff's late disclosure precludes them from taking
Dr. Barr's deposition and retaining experts of their own,
resulting in unfair prejudice.
contends that their disclosure of Dr. Barr was proper
pursuant to Federal Rule of Civil Procedure 26 as the
scheduling order in this case did not include a deadline for
disclosure of expert reports. Plaintiff also argues that his
disclosure of Dr. Barr should not have surprised Defendants
as counsel indicated in late April and early May 2019 that he
intended to disclose a dental expert witness. Moreover,
Plaintiff asserts he is willing to cooperate in producing Dr.
Barr for deposition. Plaintiff asserts that he has no
objection to a reasonable extension of the discovery deadline
to allow Defendants the opportunity to depose Dr. Barr and
submit their own expert declaration.
Rule of Civil Procedure 26(a)(2)(D) directs each party to
disclose its expert opinion reports “at the times and
in the sequence that the court orders.” In the absence
of other directions from the court, the disclosures must be
made at least 90 days before the date set for trial.
Fed.R.Civ.P. 26(a)(2)(D). Here, discovery was to be completed
by July 26, 2019; however, no deadlines for expert discovery
were ever set and no trial date is assigned. In Sherrod
v. Lingle, a case relied on by Plaintiff, the Seventh
Circuit considered how these circumstances (no trial date and
no expert discovery deadlines) affect the expert report
deadline, and found that the reports were due on the date
discovery closed. 223 F.3d 605, 612-13 (7th Cir. 2000).
However, other courts have concluded that disclosure of
expert reports at the end of discovery, when there would be
inadequate time for the opposing party to depose the expert
or engage their own rebuttal expert, is an appropriate basis
on which to exclude the expert report. See Finwall v.
City of Chicago, 239 F.R.D. 494, 501 (N.D. Ill. May 31,
instance, given the absence of any specific deadline for
expert discovery, the fact that no trial date is assigned,
and the rather recent assignment of counsel for Plaintiff
(who was proceeding pro se prior to January 2019),
the Court DENIES Defendants' request to
bar Plaintiff's expert. However, in the interest of
justice, and due to the delay in Plaintiff's expert
disclosure, the Scheduling Order shall be amended to allow
sufficient time for Plaintiff's expert to ...