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Gross v. Edge

United States District Court, W.D. Wisconsin

July 19, 2018

JOHN V. GROSS, JR., Plaintiff,
B. EDGE, et al., Defendants.



         Pro se plaintiff John V. Gross is proceeding in this civil lawsuit on claims that his medical care at the Wisconsin Secure Program Facility (WSPF) have violated his rights under the Eighth Amendment and state law. The court granted Gross leave to proceed against thirteen defendants. The Wisconsin Department of Justice represents twelve of them because they are either Wisconsin Department of Corrections (DOC) or University of Wisconsin employees (the “State Defendants”). Defendant #13, Tanya Bonson, is a nurse practitioner who has her own lawyer.

         On June 12, 2018, three days before the dispositive motion filing deadline, Gross filed a series of motions seeking: assistance in recruiting counsel (dkts. 32, 45), to compel disclosure of his medical records (dkt. 40), an extension of the expert disclosure deadline (dkt. 41), to strike defendants' experts (dkt. 43), to take depositions (dkt. 44), and to stay all deadlines (dkt. 46). On June 15, 2018, Bonson filed a motion for summary judgment, and the State Defendants filed a motion for partial summary judgment.

         I will give Gross some of the relief he requests by extending the expert disclosure and summary judgment deadlines, but I am denying his remaining requests.

         Motion to compel (dkt. 40)

         Gross moved to compel responses to a document request asking for (1) copies of his medical records dating back to 2012, and (2) defendants' personnel files. The State Defendants opposes both parts of this motion. With respect to Gross's personnel record requests, the State Defendants responded to this request by providing Gross the position descriptions for the State Defendants and informing Gross that these defendants have not been disciplined. Gross has not suggested that these responses were inadequate, so I am denying his motion to compel additional disclosures, with this direction for clarification by the State: it disclose to Gross if any of the State Defendants ever have been disciplined for conduct or behavior substantially similar to the conduct that is alleged against them in the instant lawsuit.

         As to the medical record request, the State Defendants respond that they have permitted Gross to conduct a medical record review and request his own copies. Furthermore, because Gross indicates that he may send his medical records to potential experts, the State Defendants report that they will provide Gross's medical records in the DOC's possession if Gross executes a proper release authorizing disclosure. With respect to the release, Gross indicates that he has signed one and is attempting to work with defense counsel.

         With respect to his access to his medical file, Gross replies that he receives very limited periods of time in which to review his medical records and cannot afford to make copies of the records he needs. Even if this is true, I am not compelling defendants to turn over all of his medical records from 2012 forward. For one, while Gross may want to provide as much context about his condition as possible, his claims in this lawsuit arose from events that took place beginning in 2015, and I not persuaded that Gross needs all of his previous medical records to respond to defendants' motions for summary judgment. Furthermore, in support of their summary judgment motions, the State Defendants' submitted Exhibits 100 (dkts. 61-1 and 62-2) and Exhibit 102 (dkt. 62-1), which include over 300 pages of Gross's medical records and Gross's records related to his University of Wisconsin visits. Because Gross has received these materials, I am confident that Gross has sufficient access to his medical records to litigate this case. Accordingly, I am denying his motion to compel.

         Motions for extension (dkt. 41) and to strike (dkt. 43)

         Gross moves for an extension of time to identify his expert witnesses and to strike defendants' expert witnesses. With respect to his extension request, Gross recognizes that the deadline for disclosing experts was March16, 2018, but explains that his medical care claims may hinge on expert testimony and that he has been in contact with two potential companies that may be able to provide opinions about his medical records. Gross says that he needs more time because he needs to forward those materials to those companies. While the State Defendants take issue with Gross's delay, they do not oppose this request so long as they also receive additional time and a chance to amend their expert disclosures and/or file additional dispositive motions based on the disclosures of such experts.

         The State is correct: Gross should have been more diligent, and his explanation for why he waited this long is unpersuasive. It is still not clear if he actually has a commitment from anyone actually to provide expert opinions in this case. Even so I will give him one more month: his new, final deadline to disclose experts is August 17, 2018. Gross must immediately direct his experts to contact the attorney for the State Defendants to arrange for them to receive the materials necessary for their review. If Gross actually provides expert disclosures by August 17, 2018, then the State Defendants may request the opportunity for supplemental disclosures and briefing.

         I am denying Gross's motion to strike defendants' experts. Gross seeks to strike defendants' experts because they are defendants, and thus their opinions would be self-serving and biased. Gross is free to argue these points at trial, but Federal Rule of Civil Procedure 26(a)(2) does not prohibit parties from serving as expert witnesses, and Gross has not articulated an alternative basis to strike them.

         Motion to take deposition (dkt. 44)

         Gross seeks to take the depositions of all of the defendants because he believes that their written discovery responses have not been sufficiently helpful. Defendants' attorneys respond that they will produce defendants for depositions upon receiving a proper notice pursuant to Federal Rule of Civil Procedure 30(b). Therefore, I am denying this motion as unnecessary. If this motion really is about money, then Gross is out of luck. It is Gross's obligation to pay the court reporter costs for each deposition. Further, If Gross seeks to subpoena a non-party for a deposition, then he will also be ...

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