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Cox v. Ann

United States District Court, D. Kansas

March 14, 2014

NICHOLAS A. COX, Plaintiff,
v.
ANN (LNU), et al., Defendants.

MEMORANDUM AND ORDER

GERALD L. RUSHFELT, Magistrate Judge.

The Court has before it Plaintiff's Motion for Screening Panels, or in the Alternative, Motion for Expert Witnesses (ECF 148). Plaintiff asserts in this case claims under 42 U.S.C. ยง 1983 and Kansas common law for damages allegedly arising from medical malpractice during his incarceration in jail in Johnson County, Kansas. The motion urges his need for expert medical opinions to support his claims against the co-defendants who are a doctor and nurses. Proceeding pro se and in forma pauperis, Plaintiff asserts his financial inability to retain an expert witness. He asks the Court to appoint medical screening panels, as authorized by K.S.A. 60-3501. In the alternative, he requests appointment of expert witnesses pursuant to Fed.R.Evid. 706(a) and D. Kan. Rule 26.4(a). For the following reasons the Court denies both motions; although the denial is without prejudice to any later motion for appointment of expert witnesses under the cited rules.

I. Motion for Screening Panels Under K.S.A. 60-3501, et seq.

The Court notes that Plaintiff moved for appointment of a screening panel pursuant to K.S.A. 60-3502, which applies to professional malpractice liability actions. A "professional malpractice liability action" is defined as any action for damages arising out of the rendering of or failure to render services by a "professional licensee, " which is defined as not including "any health care provider as defined by K.S.A. 40-3401."[1] Medical malpractice screening panels are governed by K.S.A. 65-4901. However, the Court's analysis and reasoning would apply equally to a motion for appointment of a screening panel under either statute.[2] Rule 142 of the Rules of the Supreme Court of Kansas governs the procedure for screening panels under both statutes.

For several reasons the Court finds the motion for screening panels should be denied. First, the purpose in convening a screening panel is to encourage and facilitate the early settlement of claims of professional malfeasance. And to do so at an early stage of the law suit, thus to minimize and avoid the expense and delay of litigation. Roy v. Young , supports this as a limited purpose of the statute: "The legislature's intent in creating the screening panel procedure was to have claimants submit their malpractice claims for resolution, or at least screening, without the expense and delay of litigation."[3]

By contrast, the statute does not purport to serve as a mechanism for appointing an expert witness for the benefit of any one party over another, whether plaintiff or defendant, if the case does not settle. A screening panel consists of three experts, not just one. It also has a presider. The panel reviews the submissions of all parties, both plaintiff and defendant. It then issues a joint report, if possible, of its medical assessment. The rule does provide, if the case does not settle, that the report may be admitted into evidence. But the primary purpose of the statute is to encourage early settlement and minimize the expense and delay of litigation.

This accords with Rule 142(c) of the Kansas Supreme Court. It requires that any motion for a screening panel be made within 60 days of completion of service of process on the parties whose professional conduct would be reviewed.[4] The appointment and convening of each panel itself generates substantial expense for the time and service of four professional persons-an expense that the parties themselves must pay, usually as part of the costs of the action.

Second, applying Kansas Supreme Court Rule 142(c), this Court finds the motion to appoint screening panels is in fact untimely. Plaintiff initiated this case by Petition, filed September 14, 2012, in the District Court of Johnson County, Kansas.[5] It named as defendants Nurse Ann, Valerie Rethaford, Sheriff Frank Denning, Dr. Pattison, and Correct Care Solutions, LLC as defendants.[6] They were served with process: Valerie Rethaford on September 26, 2012; Correct Care Solutions LLC, Nurse Ann, and Dr. Pattison on September 27, 2012, 2012.[7] After removal to this Court, an amended complaint, filed April 4, 2013, added Nurse Jane Doe and Nurse R as co-defendants.[8] Nurse R appeared as one of the Defendants who answered the amended complaint on April 16, 2013.[9] On October 22, 2013, Plaintiff filed the instant motion for appointment of screening panels to include Nurse Megan Collar, whom he described as an LPN.[10] On November 18, 2013, Plaintiff filed a Second Amended Complaint, adding Megan Coller as a co-defendant.[11] On November 25, 2013, Megan Coller appeared as one of the defendants who filed an answer to the Second Amended Complaint.[12] As already noted, Rule 142(c) of the Kansas Supreme Court requires a motion for a screening panel to be made within 60 days of completion of service. Plaintiff filed a motion to file his motion for screening panels under seal on September 25, 2013. The Court granted the motion to file under seal, and Plaintiff filed his motion for screening panels on October 22, 2013. Here the 60-day deadline expired by November 26, 2012, as to defendants Nurse Ann, Valerie Rethaford, and Dr. Pattison, and expired as to Nurse R on June 15, 2013. The case has proceeded through a barrage of motions, briefing, pleadings, discovery, scheduling and status conferences.

In their supplemental briefing (ECF 163) Defendants have cited Ellibee v. Chappas, a case in which Magistrate Judge Sebelius applied Kansas Supreme Court Rule 142 to find that the request for a screening panel was untimely, when filed more than 60 days after the appearances of the defendants.[13] The Court agrees with the ruling in Ellibee and finds that the requests here are untimely.

II. Alternative Motion for Appointment of Expert Witnesses.

By his alternative motion Plaintiff asks the Court to appoint expert medical witnesses for his benefit. He invokes Fed.R.Evid. 706(a), which provides as follows:

(a) Appointment Process. On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own ...

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