Ellsworth v. Prison Health Services Incorporated et al
ORDER The reference to the Magistrate Judge is withdrawn as to: (a) Plaintiff's Motion in Limine Re: Plaintiff's Criminal History (Doc. 138);(b) Plaintiff's Motion to Appoint Expert Witness for Trial (Doc. 139); and(c) Plaintiff's Renewed Motion for Sanctions Against Defendants/Request for Show Cause Hearing (Doc. 144); the court FURTHER ORDERS that: the Plaintiff's Motion in Limine Re: Plaintiff's Criminal History (Doc. 138 ) is GRANTED to the extent that the def endants may not introduce evidence of the specificsof the plaintiff's felony conviction, but it is DENIED insofar as the defendants are seeking to introduce evidence of the date of plaintiff's felony conviction and that he is currently ser ving a ten year sentence for that conviction. This evidence will be admitted for the limited purpose ofimpeachment. the Plaintiff's Motion to Appoint Expert Witness for Trial (Doc. 139 ) is DENIED; the Plaintiff's Renewed Motion for Sancti ons AgainstDefendants/Request for Show Cause Hearing (Doc. 144 ) is DENIED; the Plaintiff's Objection to Defendants['] Notice of Appearance/Request to Remove Defendants['] Counsel (Doc. 148 ) is DENIED; and the plaintiff's " ;Motion for District Court Order Re: Stephen D. Brown Affidavit" (Doc. 155 ) is GRANTED. The plaintiff's "Motion for Transcripts" (Doc. 157 ) is DENIED; the plaintiff's "Motion to Reconsider Magistrate's Order&quo t; (Doc. 163 ) is denied; the parties are to appear telephonically on the 13th day of January, 2014 at 10:00 a.m. for the purpose of discussing the time frames which need to be determined with respect to their Joint Pretrial Statement and Final Pret rial Order (Doc. 154). Defense counsel shall provide the Court with a telephone number where plaintiff may be contacted and make the necessary arrangements for his appearance by telephone at the hearing; and with respect to the Joint Pretrial Statement and Final Pretrial Order (Doc. 154 ), in light of the rulings herein, the court strikes page 18:19-23. Signed by Senior Judge Robert C Broomfield on 12/12/2013.(KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James Jackson Ellsworth,
Prison Health Services,
Inc., et al.
No. CIV 11-8070 PCT RCB(MEA)
O R D E R
judgment, plaintiff pro se James Jackson Ellsworth filed a host
of pre-trial motions.
are currently pending before the court: (1) a motion in limine
regarding his criminal history (Doc. 138); (2) a
appoint an expert witness (Doc. 139); (3)
sanctions (Doc. 144); (4) an “Objection to Defendant’s [sic]
Notice of Appearance/Request to Remove Defendants[’] Counsel”
court order as to the affidavit of Stephen D. Brown (Doc. 155),
and a motion to obtain a court transcript (Doc. 157).
More specifically, the following motions
a renewed motion for
In addition, the plaintiff filed a motion for a
the Honorable Mark E. Aspey, United States Magistrate Judge
recently issued an order denying those two motions (Doc. 162),
as more fully explained herein, this court is vacating that
The court may quickly dispatch with plaintiff Ellsworth’s
motion for sanctions because it is moot.
motions warrant closer examination, however.
The plaintiff’s other
“Renewed Motion for Sanctions”
The plaintiff is requesting that the court issue an order
to show cause and find the defendants in contempt for allegedly
failing to cooperate with him in preparing and filing the joint
plaintiff is also seeking a court order requiring the defendants
to pay him $65.00 for the costs he allegedly incurred in filing
Granting the plaintiff’s motion to extend the time in which
to file the JPPTO, the parties had until May 20, 2013, by which
to file that document.
Tellingly, the plaintiff brought this motion ten days prior to
that court ordered deadline.
See Ord. (Doc. 133) at 6:12-161, ¶ (2).
The plaintiff’s motion was, thus,
More significantly, however, the plaintiff’s motion is moot
because he has already received the primary relief which he is
Accepting plaintiff’s claim that he did not
For uniformity and ease of reference, all citations to page
numbers of docketed items are to the page assigned by the court’s case
management and electronic case filing (CM/ECF) system.
receive a copy of the JPPTO, which the court sent to his last
known address (Doc. 145 Notice of Electronic Filing), the
defendants provided the plaintiff with another copy on August
The foregoing also renders moot the plaintiff’s “supplemental
extension of time in which to file the JPPTO.
Mot. (Doc. 150) at 3.
entirety plaintiff’s motion for sanctions (Doc. 144).
See Ord. (Doc. 160) at 1:27-2:1 (citation omitted).
See Pl.’s Supp.
Accordingly, the court denies in its
The plaintiff’s motion as to the Brown affidavit has its
12 origins in the inadvertent disclosure to him of “sensitive and
13 confidential information . . . produced in error by Lexington
14 Insurance Company (“Lexington”), a non-party[.]”
15 93) at 1:22-23.
See Mot. (Doc.
That disclosure resulted in motion practice
16 before this court including a hearing on September 11, 2012.
17 Doc. 109.
Understandably, the Magistrate Judge was not as
18 familiar as is this court with the many nuances surrounding that
19 inadvertent disclosure, especially the representations during
20 that hearing made to this court by defense counsel Mary A. Palma
21 and fully discussed below.
In light of the foregoing, the court
22 is vacating the Magistrate Judge’s order (Doc. 162) denying the
23 plaintiff’s “Motion for District Court Order Re: Stephen D.
24 Brown Affidavit” and his “Motion for Transcripts” (Doc. 157),
25 and considers those two motions next.
Lexington is the insurer for the parent company of the
1 defendant Prison Health Services, Inc. (“PHS”).2
Sept. 11, 2012
2 Audio Transcript (“Tr.”) at 9:45:52 a.m. - 9:45:55 a.m.
3 an additional insured on that policy.
4 9:46:00 a.m.
Id. at 9:45:56 a.m. -
The court assumes familiarity with Lexington’s
5 inadvertent disclosure to the plaintiff of certain documents
6 (“the Lexington documents”).
Some of that background bears
7 repeating though, as it directly relates to the plaintiff’s
8 current motion to obtain the affidavit of Stephen D. Brown, PHS’
10 appendices attached thereto.
Those three appendices outline the
12 protected: (1) Protected Health Information; (2) Work Product;
13 and (3) Commercially Sensitive Documents.
14 9:53:57 a.m.
Id. at 9:51:22 a.m. -
Mr. Brown’s affidavit was exhibit “C” to PHS’
15 motion to strike the Lexington documents from the record and
16 require the plaintiff to return those documents (“the motion to
Defs.’ Mot. (Doc. 93) at 12-14 (emphasis omitted).
18 After granting that motion to strike, the court also granted
19 PHS’ separate motion to, among other things, seal the Brown
20 affidavit and the Lexington documents (“the sealing order”).
21 See Ord. (Doc. 111).
During the hearing on PHS’ motion to strike, the plaintiff
As this court has previously recognized, “[a]fter PHS’s parent
corporation was acquired, PHS was renamed” to
Corizon Health, Inc.
Ellsworth v. Prison Health Services Inc., 2012 WL 1107754, at *1 n. 1
(citation omitted); see also Ord. (Doc. 66) at 1, n. 1 (same).
rights and obligations of PHS are properly asserted by and against Corizon
Health, Inc.[,]” as PHS concedes. See Defs.’ Mot. (Doc. 94) at 1:26, n. 1.
For consistency, the court will refer to this defendant as “PHS.”
1 maintains that the court “ordered” PHS’ counsel, Mary A. Palma,3
2 to provide the Brown affidavit to him.
Pl.’s Mot. (Doc. 155) at
Attempting to obtain that affidavit, the plaintiff claims
4 that he made repeated telephone requests of J. Scott Conlon,
5 PHS’ Phoenix based counsel.
But, despite repeated assurances by
6 Mr. Conlon, plaintiff claims that he has yet to receive the
7 Brown affidavit.
The plaintiff asserts that Mr. Brown is his
8 witness and that unspecified documents “potential[ly]” could be
9 used at trial.
Id. at 3.
Thus, the plaintiff is seeking a
Through attorney Conlon, the defendants4 retort that the
13 plaintiff is “either misrepresenting or . . . misread[ing]” the
point out that that order mandates, among other
16 things, that the Brown affidavit “be placed under seal and not
17 incorporated into the regular record of this case[.]” Ord. (Doc.
18 111) at 1:21-22.
The defendants further note that the sealing
19 order requires the Brown affidavit to “remain under seal un[til]
20 further order of this Court.”
Id. at 1:22.
Based upon the
21 foregoing, the defendants urge denial of plaintiff’s motion to
22 obtain the Brown affidavit.
In his reply, the plaintiff clarifies that the sealing order
Ms. Palma is a Georgia attorney representing defendants PHS and
Dr. Kirsten Mortenson, and was admitted to practice before this court pro
hac vice. Appl’n (Doc. 107).
Although PHS alone moved to strike and to seal the Lexington
documents, PHS and co-defendant, Dr. Kirsten Mortenson, are opposing the
plaintiff’s motion to obtain the Brown affidavit.
1 is not the basis for this motion.
Rather, plaintiff Ellsworth
2 is relying upon his recollection of what transpired during the
3 September 11, 2012, hearing on PHS’ motion to strike.
4 plaintiff recalls it, during that hearing the court “ordered
5 defense counsel, Mary Ann Palmer [sic] to provide a copy” of the
6 Brown affidavit to him.
See Pl.’s Mot. (Doc. 155) at 2.
7 part because attorney Conlon was not present at that hearing,
8 the plaintiff is requesting that the court order a written
9 transcript to resolve this motion.
See Pl.’s Reply & Mot. (Doc.
There is no need for a written transcript.
As with all
12 proceedings in this court, an electronic court recorder was
13 present, which means that this court has electronic access to
14 the entire September 11, 2012 hearing.
Accordingly, the court
15 denies the plaintiff’s motion to obtain a written transcript of
16 that hearing (Doc. 157).
19 plaintiff with a copy of the Brown affidavit, and that she could
20 not explain why he did not receive it prior to the hearing.
21 at 9:42:00 a.m. – 9:42:10 a.m.
Opting to proceed with the
22 hearing, the court instructed attorney Palma that if during her
23 argument she alluded to the Brown affidavit, for the plaintiff’s
24 benefit, she was to outline to what she was referring.
25 9:42:19 a.m. - 9:42:42 a.m.
Attorney Palma advised that the
26 appendices to the Brown affidavit identified and described the
27 documents at issue.
Id. at 9:55:03 a.m. - 9:55:11 a.m.
After apologizing to the plaintiff for not having provided
1 him with a copy of that affidavit, attorney Palma stated that
2 she did not anticipate that they would be going through each and
3 every document during the hearing.
4 9:55:21 a.m.
Id. at 9:55:12 a.m. -
Attorney Palma hastened to add, however, “We’ll
5 certainly make sure that the plaintiff is given a copy of Steve
6 Brown’s affidavit and the documents that we are talking about.”
7 Id. 9:55:22 a.m. - 9:55:28 a.m.
She then opined that those
8 “documents probably compromise not more than 30% of the total
9 documents that were produced by Lexington.”
Id. at 9:55:31 a.m.
10 - 9:55:40 a.m.
The plaintiff is under the mistaken impression that this
12 court ordered PHS to provide him with a copy of the Brown
As the electronic transcript reveals, however, it
14 was defense counsel who volunteered not once, but twice, to
15 provide the plaintiff with that affidavit.
So, despite the
16 plaintiff’s characterization, PHS has not acted “contrary to
court’s order” by not providing him with the Brown
See Pl.’s Mot. (Doc. 155) at 2.
Nonetheless, as an
20 representations during the hearing.
The sealing order still remains in effect though, as the
22 defendants are quick to point out.
The defendants strongly
23 imply that the effect of that order is to prohibit the plaintiff
24 from obtaining the Brown affidavit, despite the fact that during
25 the hearing attorney Palma explicitly agreed to provide that
26 affidavit to the plaintiff.
In any event, LRCiv 5.6(f) is clear.
“If the Court orders
28 the sealing of any document” thereunder, “the Clerk shall file
1 the order to seal and secure the sealed document from public
LRCiv 5.6(f) (emphasis added).
That Rule does not
4 plaintiff Ellsworth. Accordingly, the court hereby grants the
5 plaintiff’s motion (Doc. 155) to obtain the Brown affidavit and
6 the three appendices thereto (Doc. 95).
Felony Conviction Evidence
Plaintiff Ellsworth is seeking to preclude the defendants
9 from introducing evidence of the felony conviction for which he
10 is currently incarcerated.
As the plaintiff describes it, that
11 conviction “is sexual in nature.”
Pl.’s Mot. (Doc. 138) at 2.
12 The plaintiff thus argues that not only will he be “unfair[ly]
13 prejudiced” by the introduction of that evidence, but it is “not
14 highly probative of [his] credibility.”
Id. (citation omitted).
15 If the court will not exclude this evidence, the plaintiff is
16 willing to make a limited admission.
He will “admit” that he
17 has a felony conviction, but not that “it was for a sexual
Id. at 3.
The defendants respond, based upon Fed.R.Evid. 609, that if
20 the plaintiff testifies, then they “are permitted to attack his
21 character for truthfulness by using [that] criminal conviction.”
22 Defs.’ Resp. (Doc. 142) at 2:18-19.
To impeach the plaintiff on
23 cross-examination, the defendants want to introduce evidence
24 that he is currently serving a ten-year sentence “for attempted
25 molestation of a child and dangerous crimes against children, a
26 class 3 felony.”
Id. at 2:4-5
(citing exh. A thereto, Inmate
27 Data Sheet for James Ellsworth).
The defendants want to crossthe
1 conviction, as well as “the nature of the crime charged[.]” Id.
2 at 4:14.
The defendants do not elaborate as to the latter; so,
3 it is unclear as to exactly what they mean by “the nature of the
4 crime charged[.]” See id.
6 “concede that they are not permitted to make inquiry into the
Id. at 4:15-16. Given that concession, presumably
9 the defendants are equating “the nature of the crime charged”
10 with “attempted molestation of a child and dangerous crimes
11 against children, a class 3 felony.”
Id. at 4:14; and at 2:4-5.
13 construing it, the defendants maintain that they have the “right
14 to impeach Plaintiff with his criminal conviction including the
15 nature of the offense.”
Id. at 5:23-24 (emphasis added).
16 evidence is necessary, from the defendants’ standpoint, for the
17 jury to fairly evaluate the plaintiff’s credibility.
In rejoinder, the plaintiff points out that during the
19 majority of the time that he was housed at the Mohave County
– not a convicted felon.
The plaintiff did not become
22 a convicted felon until after his guilty plea, for which he was
23 sentenced on July 6, 2010.
Based upon this sequence of events,
25 attacked” because he was innocent until he pled guilty.
26 Reply (Doc. 145) at 2.
The plaintiff offers no legal support
27 for this novel proposition, and the court can conceive of none.
In another example of circular reasoning, the plaintiff
1 contends that because he is serving a sentence based upon his
2 guilty plea, his credibility is not at issue.
Rule 609 does
3 not distinguish, and neither will this court, however, between
5 following a trial.
In his reply, the plaintiff reiterates that given the nature
7 of his conviction, the prejudice far outweighs any possible
8 probative value; and, he disagrees with the defendants that a
instruction can cure such prejudice.
10 plaintiff maintains that because he will be testifying, the jury
Federal Rule of Evidence 609 governs the admission of
14 evidence of a criminal conviction.
In pertinent part, that Rule
15 provides that evidence of a felony conviction “must be admitted,
16 subject to Rule 403, in a civil case . . . in which the witness
17 is not a defendant[.]” Fed.R.Evid. 609(a)(1)(A).
In turn, Rule
18 403 provides that relevant evidence may be excluded “if its
19 probative value is substantially outweighed by the danger of one
misleading the jury, undue delay, wasting time, or
22 needlessly presenting cumulative evidence.” Fed.R.Evid. 403.
Applying Rule 609 in tandem with Rule 403, the court will
24 grant the plaintiff’s motion to the extent that the defendants
25 may attempt to introduce evidence that he has been convicted of
26 “attempted molestation of a child and dangerous crimes against
27 children[.]” See Defs.’ Resp. (Doc. 142) at 2:4-5.
28 of that conviction, as opposed to the fact of the conviction
- 10 -
1 itself, carries almost no probative weight.
See U.S. v. Sherlock, 962 F.2d 1349, 1360 n. 4 (9th
4 Cir. 1992) (“sex offense” conviction properly excluded because
Moreover, allowing the jury to hear the nature of
7 plaintiff Ellsworth’s conviction has the potential to confuse
8 the issues.
That does not mean that the defendants are completely barred
10 from attempting to impeach the plaintiff’s credibility with
of his felony conviction, but the scope of their
12 inquiry is limited.
If plaintiff Ellsworth testifies, as he has
13 indicated he will, the defendants may introduce evidence of the
14 date of his felony conviction and that he is currently serving
15 a ten year sentence for that conviction.
This evidence will be
16 admitted for the limited purpose of impeachment, and the court
17 will instruct the jury accordingly.
The defendants may not
18 elicit testimony regarding the nature or any details or any
19 facts underlying that conviction, or the name of the offense.
20 Proceeding in this way is consistent with the Ninth Circuit’s
21 stance that “[a]bsent exceptional circumstances, evidence of a
conviction admitted for impeachment purposes may not
23 include collateral details and circumstances attendant upon the
United States v. Osazuwa, 564 F.3d 1169, 1175 (9th
25 Cir. 2009) (quotation marks and citations omitted).
26 “[g]enerally, only the prior conviction, its general nature, and
27 punishment of felony range [are] fair game for testing the
28 defendant’s credibility.”
Id. (internal quotation marks and
- 11 -
1 citations omitted).
Appointment of Expert Witness
Prior to plaintiff’s incarceration at the MCJ, Dr. Nayer
5 During the plaintiff’s incarceration at the Florence facility,
6 defendant Dr. Mortenson had a telephone consult with Dr. Nayer
7 regarding an exacerbation of the plaintiff’s multiple sclerosis.
8 Now, plaintiff Ellsworth is seeking to have the court appoint
9 Dr. Nayer as an expert pursuant to Fed.R.Evid. 706.
The plaintiff advances several reasons to justify such an
First, he claims that Dr. Nayer is a “material
12 witness” because of a purported factual dispute.
13 (Doc. 139) at 8.
Second, believing that the defendants will be
14 calling Dr. Mortenson “as an expert witness[,]” the plaintiff
15 claims that he is entitled to the appointment of Dr. Nayer as an
Even if the court does not appoint Dr. Nayer as an
Id. at 13. The plaintiff also contends that expert
20 evidence is necessary to establish the required standard of
21 care, as well as to show deliberate indifference to serious
22 medical needs in violation of the Eighth Amendment.
23 although at this point the plaintiff does not have the funds to
24 pay for an expert witness, he is agreeable to having “the court
25 order him to pay for the expert when funds are available.”
26 at 10.
In opposing Dr. Nayer’s appointment as an expert, the
28 defendants assert: (1) the discovery cut-off date under LRCiv.
- 12 -
1 16.2(b)(2) has expired; and (2) there is no need for an expert
2 because in denying summary judgment, this court held that expert
4 Alternatively, if the court determines that “medical records,
6 admissible at trial[,]” then the defendants request that they be
7 allowed to depose plaintiff’s proposed expert, and, in their
9 neurological expert.
Resp. (Doc. 143) at 1:21-22.
Plaintiff retorts that he is unaware of any rule requiring
12 Regardless, the plaintiff claims that no prejudice would result
13 to the defendants if the court appoints an expert on his behalf.
Fed.R.Evid. 702 defines an expert witness as one “who is
16 training, or education[.]” Fed.R.Evid. 702.
Appointment of an
17 expert witness is proper when “scientific, technical, or other
18 specialized knowledge will help the trier of fact to understand
19 the evidence or to determine a fact in issue[.]” Fed.R.Evid.
Rule 706, which is the basis for plaintiff Ellsworth’s
21 motion, permits a court to appoint an expert witness, define the
22 expert’s duties and set compensation, including proportioning
23 payment between the parties.
That Rule permits a district court
24 “on its own motion” or on the motion of any party to enter an
26 appointed [.]” Fed.R.Evid. 706(a).
A district court’s decision
27 under Rule 706 is subject to review under an abuse of discretion
- 13 -
1 Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999).
Plaintiff Ellsworth, in seeking appointment of an expert
and the defendants in opposing it, are missing a
4 critical point.
Regardless of the timing of this motion, Rule
5 706 does not authorize this court to appoint Dr. Nayer as
6 plaintiff’s expert because that Rule “‘[o]nly allows a court to
7 appoint a neutral expert.’” See Womack v. GEO Group, Inc., 2013
8 WL 2422691, at *2 (D.Ariz. June 3, 2013) (quoting Gorton v.
9 Todd, 793 F.Supp.2d 1171, 1178 (E.D.Cal. 2011) (citation and
10 footnote omitted)) (emphasis added).
11 construed, Rule 706 does not contemplate the appointment of, and
12 compensation for, an expert to aid one of the parties.’” Id.
13 (quoting Hollis v. Sloan, 2010 WL 4069336, at *1 (E.D.Cal. Oct.
14 18, 2010) (other quotation marks and citation omitted)); see
15 also Antonetti v. Skolnik, 2013 WL 593407, at *4 (D. Nev. Feb.
16 13, 2013) (citing Gorton, 793 F.Supp.2d at 1177 n. 6) (“The Rule
17  does not provide for the appointment of an expert to be an
Indeed, “‘[t]he principal purpose of a courtappointed
20 [sic] expert is to assist the trier of fact, not to serve as an
. . . , cannot be appointed solely to aid the
24 litigant in presenting his case, witnesses can only be appointed
25 where necessary to aid the court.”
Bovarie v. Schwarzenegger,
26 2011 WL 7468597, at *20 (S.D.Cal. Sept. 21, 2011) (citations
27 omitted) (emphasis added), adopted in whole, 2012 WL 760620
28 (S.D.Cal. March 7, 2012).
As can be seen, Rule 706 does not
- 14 -
2 plaintiff Ellsworth is seeking his appointment, not as a neutral
3 expert, but to advocate on the plaintiff’s behalf.
4 this reason alone is more than a sufficient basis for denying
5 the plaintiff’s motion to appoint an expert, there are other
6 reasons as well.
Another equally compelling reason for denying this motion
8 is that the plaintiff has not shown how Dr. Nayer’s testimony
9 will assist the trier of fact in understanding the evidence or
11 plaintiff claims that there is a disputed factual issue as to
12 whether he was seen by Dr. Nayer or his physician’s assistant.
13 Plainly, however, a fact finder does not need any “scientific,
or other specialized knowledge” to resolve that
15 claimed issue.
See Fed.R.Evid. 702(a).
Further, in arguing that he needs an expert to refute the
of Dr. Mortenson, the plaintiff misconceives the
18 capacity in which she will be called to testify.
19 is a party to this action; she is not an expert witness.
the defendants “have not named a designated expert.”
22 plaintiff’s argument that he is entitled to an expert to refute
23 Dr. Mortenson’s testimony.
25 pursuant to Rule 706 and usually do so only in ‘exceptional
26 cases in which the ordinary adversary process does not suffice’
27 or when a case presents compelling circumstances warranting
28 appointment of an expert.’” Womack, 2013 WL 2422691, at *2
- 15 -
1 (quoting Hart v. Agnos, 2008 WL 2008966, at *5 (D. Ariz. April
2 25, 2008) (citations omitted)).
3 neither showing.
Plaintiff Ellsworth has made
Without diminishing the significance of this
4 action to the parties, it does not fall into the category of
cases in which the ordinary adversary process
6 [will] not suffice[.]” See id. (internal quotation marks and
7 citations omitted).
Likewise, there are no “compelling circumstances warranting
9 appointment of an expert” here.
See id. (internal quotation
11 relatively straightforward and pertain primarily to the issue of
12 whether the defendants were deliberately indifferent to the
13 plaintiff’s serious medical needs.
“[E]ssentially[,]” this is
14 “a question of subjective action or intent.”
Antonetti, 2013 WL
15 593407, at *6 (citing Ledford v. Sullivan, 105 F.3d 354, 359 (7th
16 Cir. 1997)).
Hence, “an expert would not . . . assist” in
17 making this subjective
As in Ledford, “the question of whether the [defendants]
19 displayed deliberate indifference toward [Ellsworth’s] serious
20 medical needs d[oes] not demand that the jury consider probing,
21 complex questions concerning medical diagnosis and judgment.”
22 See Ledford, 105 F.3d at 359; see also Bovarie, 2011 WL 7468597,
23 at *20 (denying appointment of a medical expert under Rule 706
24 on an Eighth Amendment claim because such an expert “would not
25 add anything on the questions of whether Defendants . . .
26 perceived a serious medical need or whether they consciously
27 disregarded that need”).
Succinctly put, “[e]xpert testimony
28 is not required to adequately evaluate evidence of Defendants’
- 16 -
1 state of mind at the time of the incident.”
Ellsworth’s contrary assertion, because this case
3 involves deliberate indifference and not medical malpractice, an
4 expert is not needed to assist the fact finder “in determining
5 and applying the appropriate standard of care[.]” See Antonetti,
6 2013 WL 593407, at *6 (citing Ledford, 105 F.3d at 359 (“The
7 test for deliberate indifference is not as involved as that for
malpractice, an objective inquiry that delves into
9 reasonable standards of medical care.”)).
Lastly, despite what plaintiff Ellsworth implies, his in
11 forma pauperis status pursuant to 28 U.S.C. § 1915 does not
12 alter the foregoing analysis.
Section 1915 “‘does not waive
13 payment of fees or expenses for witnesses.’” Watkins v. Baum,
14 2012 WL 5328734, at *1 (W.D.Wa. Oct. 29, 2012) (citing Dixon v.
15 Ylst, 990 F.2d 478, 480 (9th Cir. 1993)).
16 ‘[t]he plain language of section 1915 does not provide for the
17 appointment of expert witnesses to aid an indigent litigant.’”
18 Id. (quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995)
19 (other citations omitted).
Additionally, as in Womack, the
20 “[p]laintiff has not pointed to, and the [c]ourt’s independent
21 research has not discovered, any federal statute authorizing the
22 expenditure of public funds for the appointment of an expert
23 witness to assist a pro se party in litigation.”
24 WL 2422691, at *2.
Thus, plaintiff Ellsworth cannot rely upon
25 Rule 706 “as a means of sidestepping Section 1915 and its
against appointing an expert witness to assist
27 indigent litigants.”
See Bovarie, 2011 WL 7468597, at *20
28 (internal quotation marks and citations omitted).
- 17 -
For all of these reasons, the court finds that plaintiff
2 Ellsworth’s motion to appoint an expert falls outside the scope
3 of Fed.R.Evid. 706, and must be denied.5
On April 30, 2010, the plaintiff, through his criminal
7 counsel, appeared at a hearing in the Superior Court in Mohave
The plaintiff was seeking an order “requir[ing] the
9 jail to provide additional medical treatment.” Defs.’ Resp.
10 (Doc. 152) at 2:9-10.
During that hearing, the Mohave County
11 prosecutor argued and Dr. Mortenson testified.
12 is no dispute that Tophas Anderson, IV, an attorney with Renaud
13 Cook Drury Mesaros, PA, the law firm representing the defendants
14 herein, attended that hearing, but did not participate.
15 Pl.’s Mot. (Doc. 148) at 2; and Defs.’ Resp. (Doc. 152) at 2:1316 14.
On May 9, 2013, attorney Anderson entered his appearance,
18 to which the plaintiff now objects, in this action on behalf of
19 the defendants, “in association with J. Scott Conlon,” another
20 attorney with the Renaud law firm.
The plaintiff is seeking to
See Not. (Doc. 141) at 1:16“remove” or, as the court
In its summary judgment order, the court did indicate that “the
evidence includes expert medical opinion in the form of treatment
recommendations from Dr. Nayer, an expert[,]” which it found “support[ed]
Plaintiff’s opposition to summary judgment.” Ord. (Doc. 127) at 15:26-28.
The defendants correctly read that order to mean that the court so found
for the purposes of summary judgment only, but not for trial purposes.
Thus, because the court is not accepting Dr. Nayer’s treatment
recommendations as the equivalent of a neurological expert opinion at
trial, there is no need for the defendants, as they urge, to depose Dr.
Nayer and, at their discretion, “designate their own neurological expert.”
Defs.’ Resp. (Doc. 143) at 3:12-13.
- 18 -
his motion, to disqualify attorney Anderson from
2 representing the defendants in this case.
3 at 1.
Pl.’s Mot. (Doc. 148)
Plaintiff Ellsworth claims that attorney Anderson has a
4 “conflict of interest” because he is a “potential witness” for
5 the plaintiff at trial.
The plaintiff acknowledges
7 defendant PHS “sent [him] to the plaintiff’s criminal case[,]”
8 but he is adamant that he will not ask any questions pertaining
9 to attorney-client privilege or work product.
Id. at 2-3.
In arguing for the denial of this motion, the defendants
11 point to the plaintiff’s lack of supporting legal authority.
12 They also advance three specific merit based reasons for denial.
13 First, the defendants maintain that calling attorney Anderson as
14 plaintiff’s witness will result in improper “questions about
Second, the defendants posit that the plaintiff lacks
18 standing to waive the attorney-client privilege because the
19 defendants hold that privilege – not the plaintiff.
20 reading the plaintiff’s motion as asserting a conflict because
21 attorney Anderson represented them in the plaintiff’s criminal
22 case and in this civil action, the defendants argue that no
23 conflict exists.
That is not the basis for the plaintiff’s
25 plaintiff’s argument, the conflict arises because he plans to
26 call attorney Anderson as a witness in the trial of this action.
27 Regardless, the defendants argue that the plaintiff has not met
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Id. at 5.
With one exception, there are no marked differences between
5 calling attorney Anderson as his witness, he is trying to probe
6 into privileged attorney-client communications. However, in his
7 reply, for the first time, the plaintiff mentions that he has
8 obtained the criminal hearing transcripts.
the plaintiff intends to question
10 defendant Mortenson about her testimony in the criminal case.
11 Without commenting one way or the other on the propriety of such
14 disqualify attorney Anderson as one of the defense lawyers.
15 Mortenson’s testimony in plaintiff’s criminal case simply has no
16 bearing on the disqualification issue now before the court.
That said, the broader issue still remains as to whether the
18 court should grant the plaintiff’s motion to remove attorney
19 Anderson as defense counsel.
As can be seen, the defendants’
“The attorney-client privilege protects confidential
25 communications between attorneys and clients, which are made for
26 the purpose of giving legal advice.”
United States v. Richey,
27 632 F.3d 559, 566 (9th Cir. 2011) (citing Upjohn Co. v. United
449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584
- 20 -
“The attorney-client privilege is the oldest of the
2 privileges for confidential communications known to the common
Upjohn, 449 U.S. at 389.
The purpose of that privilege
4 is “to protect confidential communications between a party and
5 its attorney in order to encourage ‘full and frank communication
6 between attorneys and their clients and thereby promote broader
7 public interests in the observance of law and administration of
9 Microelectronics Co. Ltd., 2013 WL 4499006, at *3 (D.Nev. Aug.
10 14, 2013) (quoting Upjohn, 449 U.S. at 389).
“The Ninth Circuit
11 has adopted Dean Wigmore’s articulation of the elements of the
12 attorney-client privilege: (1) where legal advice of any kind is
13 sought, (2) from a professional legal advisor in his or her
15 purpose, (4) made in confidence, (5) by the client, (6) are, at
16 that instance, permanently protected, (7) from disclosure by the
The defendants, in invoking the attorney-client privilege,
mistakenly rely heavily upon Arizona law. See, e.g., Defs.’ Resp. (Doc.
152) at 2:21-4:14.
However, “[i]ssues concerning application of the
attorney-client privilege in the adjudication of federal law are governed
by federal common law.” United States v. Ruehle, 583 F.3d 600, 608 (9th
Cir. 2009) (internal quotation marks and citations omitted).
“since the adoption of the Federal Rules of Evidence, courts have uniformly
held that federal common law of privilege, not state law applies.” United
States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995) (internal quotation
marks and citations omitted). Thus, in Ruehle, the Ninth Circuit held that
it was reversible error for the district court to rely “almost exclusively
upon California state law to define the attorney-client relationship and
the attorney-client privilege.” Ruehle, 583 F.3d at 608. The Ruehle Court
admonished the district court for not “referencing the well-established
eight-part test” which the Ninth Circuit has adopted (and is set forth
above) for determining whether an attorney-client privilege exists. Id.
As is readily apparent, this court must apply the federal common law of
attorney-client privilege here, and not, as the defendants suggest, Arizona
See, e.g., Defs.’ Resp. (Doc. 152) at 3:18 (plaintiff’s
“request” to question Mr. Anderson regarding attorney-client communications
“violates Arizona law”).
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1 client or by the legal advisor, and (8) unless the protection is
Id. (citing, inter alia, In re: Fischel, 557 F.2d 209,
3 211 (9th Cir. 1977)).
6 “‘[b]ecause it impedes full and free discovery of the truth[.]’”
8 Investment/Indicators, Research and Management, Inc., 647 F.2d
9 18, 24 (9th Cir. 1980)).
“The burden is on the party asserting
10 the privilege to establish all the elements of the privilege.”
States v. Martin, 278 F.3d 999-1000 (9th Cir. 2002)
12 (citation omitted) (emphasis added).
Here, the defendants, as
13 “[t]he party asserting the attorney-client privilege[,] ha[ve]
burden of establishing the relationship and privileged
15 nature of the communication.”
Richey, 632 F.3d at 566 (citation
16 omitted) (emphasis omitted).
“A party claiming the privilege
17 must identify specific communications and the grounds supporting
18 the privilege as to each piece of evidence over which privilege
19 is asserted.”
Martin, 278 F.3d at 1000 (citation omitted)
Further “[w]hat is vital to the privilege is that the
24 communication be made in confidence for the purpose of obtaining
25 legal advice from the lawyer.’” Richey, 632 F.3d at 566 n. 3
26 (quoting United States v. Gurtner, 474 F.2d 297, 299 (9th Cir.
27 1973) (emphasis in original) (other quotation marks and citation
It is worth noting that “[t]he fact that a person is
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1 a lawyer does not make all communications with that person
Martin, 278 F.3d at 999 (citation omitted).
3 party asserting the privilege must, at a minimum, make a prima
4 facie showing that the privilege protects the information the
5 party intends to withhold.”
Elan, 2013 WL 44990006, at *4
6 (citation omitted).
The defendants have not met their burden of proof on this
9 “expressly admits that he intends to call Mr. Anderson to the
14 admission, however.
What the plaintiff actually wrote is that
15 he “plan[s] on calling Mr. Anderson as a witness for a simple
16 line of questioning as to why defendant [PHS] sent Mr. Anderson
17 to the plaintiff’s criminal case.”
Mot. (Doc. 148) at 2.
18 defendants are assuming that attorney Anderson’s response will
that he and PHS communicated in confidence for the
21 however, and cannot be ascertained on this record, especially
22 given the defendants’ failure to “make a specific proffer of
23 what communications, if any, are subject to the attorney-client
24 privilege[.]” See United States v. Sakai, 2011 WL 2581909, at *8
25 (D. Hawai’i June 7, 2011), adopted, 2011 WL 2600553 (D. Hawai’i
26 June 28, 2011).
Moreover, the defendants cannot avail themselves of any
28 presumptions to overcome this lack of proof.
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See In re Hotels
1 Nevada, LLC, 458 B.R. 560, 573 (Bkrtcy.D.Nev. 2011) (quoting
2 1 PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES,
3 § 11:10 (2011)) (other citations omitted) (“‘The proponent of
4 the privilege bears the burden of persuasion for each element of
5 the privilege, unassisted by presumptions that confidentiality
6 was intended and has been preserved, or that legal advice was
7 being sought through the consultations.’”) Therefore, because
9 communications, if any . . . are the subject of the attorney10 client privilege” as to attorney Anderson’s potential testimony,
11 the court will not, at this juncture, prohibit the plaintiff
12 from calling attorney Anderson as a witness at trial.
13 Richey, 632 F.3d at 567 (citations omitted).
That does not
14 necessarily mean that the court will allow attorney Anderson to
15 testify at trial, however.
At that time, the defendants will be
16 free to make a specific proffer as to any claimed privileged
17 attorney-client communication.
Attorney Disqualification - Advocate-Witness Rule
Given that the plaintiff is
22 seeking to disqualify Anderson because he will be a witness at
23 trial, clearly, the predicate for this motion is Ethical Rule
24 (“ER”) 3.7(a) of the Arizona Rules of Professional Conduct.
25 That Rule applies to attorneys appearing before this court in
26 accordance with LRCiv 83.2(e).
ER 3.7(a) prohibits an attorney
27 from acting both as an advocate and a witness at trial.
28 particular, that Rule states in relevant part:
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A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value
of legal services rendered in the case; or
(3) disqualification of the lawyer would
work substantial hardship on the client.
7 Ariz. Sup.Ct. R. 42, Rules of Prof’l Conduct, ER 3.7(a)(2013).
reason for th[is] advocate-witness rule is possible
9 prejudice at trial: A witness is required to testify on the
10 basis of personal knowledge, while an advocate is expected to
11 explain and comment on evidence given by others. It may not be
12 clear whether a statement by an advocate-witness should be taken
13 as proof or as an analysis of the proof.” Hillis v. Heineman,
15 quotation marks and citations omitted).
17 disqualification of opposing counsel, Arizona law provides that
18 ‘[o]nly in extreme circumstances should a party to a lawsuit be
19 allowed to interfere with the attorney-client relationship of
20 his opponent.’” Tavilla v. Cephalon, Inc., 2012 WL 4466544, at
(D.Ariz. Sept. 27, 2012) (quoting Alexander v. Superior
22 Court, 141 Ariz. 157, 685 P.2d 1309, 1313 (Ariz. 1984)).
23 the Ninth Circuit has noted, disqualification motions should be
24 subjected to ‘particularly strict scrutiny’ because of their
25 potential for abuse.”
Karlsson Group, Inc. v. Langley Farms
26 Invs., LLC, 2009 WL 2843290, at *3 (D.Ariz. Sept. 1, 2009)
27 (quoting Optyl Eyewear Fashion International Corp. v. Style
28 Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985)); accord
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1 Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332,
2 718 P.2d 985, 988 (Ariz. 1986) (Motions to disqualify “require
4 permitted.”) Thus, in carrying out its “duty and responsibility
5 of supervising the conduct of attorneys who appear before it[,]”
6 Erickson v. Newmar Corp., 87 F.3d 298, 300 (9th Cir. 1996), this
7 court “must . . . be solicitous of a client’s right freely to
his counsel and be wary of disqualification motions
9 interposed for tactical reasons[.]” Jamieson v. Slater, 2006 WL
10 3421788, at *3 (D.Ariz. Nov. 27, 2006) (internal quotation marks
11 and citation omitted).
At the same time, however, “as the
12 Arizona Supreme Court has acknowledged, . . . ‘the rules do
14 therefore there are times when counsel must be disqualified
15 because an adverse party intends to call him as a witness.’”
16 Tavilla, 2012 WL 4466544, at *2 (quoting Security General, 718
17 P.2d at 988).
A lawyer may be disqualified under ER 3.7(a) only if he is
20 ‘necessity.’” Security General, 718 P.2d at 988.
prong of that test, “the proposed testimony must be
22 relevant and material.”
23 be unobtainable elsewhere.”
Second, that testimony “must also
Significantly, “[a] party’s
24 mere declaration of an intention to call opposing counsel as a
25 witness is an insufficient basis for disqualification even if
26 that counsel could give relevant testimony.”
This district court “is vested with ‘substantial
28 latitude’ in deciding
whether and when to disqualify counsel.”
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1 United States v. Saathoff, 2007 WL 2990014, at *1 (S.D.Cal. Oct.
2 11, 2007) (quoting United States v. Frega, 179 F.3d 793, 800 (9th
3 Cir. 1999)).
As the moving party, plaintiff Ellsworth “has the
of “sufficiently showing why the [c]ourt should not
the presumption against disqualification of opposing
Karlsson Group, 2009 WL 2843290, at *3 (citation
On this record, plaintiff Ellsworth has not met that “high
9 burden[.]” See id. (citation omitted).
In the lodged JPPTO, the
10 plaintiff lists attorney Anderson as a witness, indicating that
11 he “is expected to testify to the reason he made an appearance
12 with Defendant Mortenson in Plaintiff’s criminal case on . . .
13 April 20, 2010.”
JPPTO (Doc. 154) at 11:15-16, ¶ F(3).
In both, as already explained, the plaintiff states
16 that he wants to question attorney Anderson as to why the
None of the foregoing is responsive, however, to the first
20 test of necessity.
The plaintiff has not explained how such
21 testimony is “relevant and material” to the critical issues at
pertaining to his claims of deliberate indifference.
23 Furthermore, there is nothing in the record as to the second
24 prong of necessity.
The plaintiff has not shown that attorney
26 “unobtainable elsewhere.”
Given Arizona’s presumption against
27 disqualifying opposing counsel, and the plaintiff’s lack of the
28 necessary proof to support disqualification, the court denies
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1 this motion.
See In re Moore, 488 B.R. 120, 127 (D. Hawai’i
2 2013) (citations omitted) (no abuse of discretion where court
3 denied debtor’s motion to disqualify attorney and law firm where
4 the debtor did not “explain what testimony she intended to
5 obtain from [that attorney], nor whether it was [un]available
7 Fullers’ White Mtn. Motors, Inc., 2008 WL 828732, at *6 (D.Ariz.
8 Mar. 26, 2008) (refusing to disqualify plaintiffs’ counsel in
9 light of Arizona law’s presumption against disqualification, and
10 because the defendants did not meet their burden of showing the
11 necessity of plaintiffs’ counsel as a witness).
As just explained, the court denies the plaintiff’s motion
13 to disqualify attorney Anderson to serve as defense counsel in
14 this case.
Resolution of the issue of whether the plaintiff may
15 call Mr. Anderson as a witness at trial, and the extent of his
16 testimony, if any, will have to await trial though.
17 time, the court will entertain the parties’ respective proffers.
For the reasons set forth above, the court hereby ORDERS
(1) The reference to the Magistrate Judge is withdrawn as
(a) Plaintiff’s Motion in Limine Re:
Plaintiff’s Criminal History (Doc. 138);
(b) Plaintiff’s Motion to Appoint Expert
Witness for Trial (Doc. 139); and
(c) Plaintiff’s Renewed Motion for Sanctions
Against Defendants/Request for Show Cause
Hearing (Doc. 144);
27 the court FURTHER ORDERS that:
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Criminal History (Doc. 138) is GRANTED to the extent that
the defendants may not introduce evidence of the specifics
of the plaintiff’s felony conviction, but it is DENIED
insofar as the defendants are seeking to introduce evidence
of the date of plaintiff’s felony conviction and that he is
currently serving a ten year sentence for that conviction.
This evidence will be admitted for the limited purpose of
(3) the Plaintiff’s Motion to Appoint Expert Witness for
Trial (Doc. 139) is DENIED;
(4) the Plaintiff’s Renewed Motion for Sanctions Against
Defendants/Request for Show Cause Hearing (Doc. 144) is
(5) the Plaintiff’s Objection to Defendants[’] Notice of
Appearance/Request to Remove Defendants[’] Counsel (Doc.
148) is DENIED; and
(6) the plaintiff’s “Motion for District Court Order Re:
Stephen D. Brown Affidavit” (Doc. 155) is GRANTED;
(a) the defendants shall provide a copy of the Brown
affidavit and the three appendices attached thereto to
plaintiff within fifteen (15) days from the date of
entry of this order; and
(b) the plaintiff shall refrain from disclosing to
anyone, whether orally or in writing, the information
contained in any of the documents provided pursuant to
(7) the plaintiff’s “Motion for Transcripts” (Doc. 157) is
(8) the plaintiff’s “Motion to Reconsider Magistrate’s
Order” (Doc. 163) is denied;
(9) the parties are to appear telephonically on the 13th
day of January, 2014 at 10:00 a.m. for the purpose of
discussing the time frames which need to be determined with
respect to their Joint Pretrial Statement and Final
Pretrial Order (Doc. 154). Defense counsel shall provide
the Court with a telephone number where plaintiff may be
contacted and make the necessary arrangements for his
appearance by telephone at the hearing; and
. . .
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(9) with respect to the Joint Pretrial Statement and Final
Pretrial Order (Doc. 154), in light of the rulings herein,
the court strikes page 18:19-23.
DATED this 12th day of December, 2013.
11 Copies to plaintiff pro se and all counsel of record
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