Smith v. Allison et al

Filing 133

ORDER DENYING Plaintiff's Motion for Appointment of and Examination By An Expert Witness 118 , signed by Magistrate Judge Jennifer L. Thurston on 3/18/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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v.

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D. GOSS, et al.,

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Case No.: 1:10-cv-01814-LJO-JLT (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF AND
EXAMINATION BYAN EXPERT WITNESS
(Doc. 118)

Defendants.

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In this matter, plaintiff Lawrence Christopher Smith is proceeding against Defendant Goss for

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violation of his right to due process and for retaliation against Defendants Goss and Langler.1 (Docs.

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31, 42, 47, 114, 126.) On December 3, 2014, Plaintiff filed a motion seeking examination by a

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podiatrist per Federal Rule of Civil Procedure 35(a). Defendants filed an opposition on December 23,

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2015 (Doc. 123) to which Plaintiff failed to reply despite lapse of more than sufficient time. The

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motion is deemed submitted. L.R. 230(l).
Rule 35 provides for examination of opposing parties upon a showing of good cause where a

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court may "order a party whose mental or physical condition . . . is in controversy to submit to a

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physical or mental examination by a suitably licensed or certified examiner," . . . . As correctly noted

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by Defendants, Rule 35 is a discovery tool and is intended as a means for a party to obtain a

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A separately issued Findings and Recommendations recommends granting Defendant Byers' motion to dismiss Plaintiff's
claim for deliberate indifference under the Eighth Amendment and is currently awaiting objections and/or adoption.

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mental/medical examination of the opposing party -- not of one's own person. Plaintiff is free to

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obtain whatever examination of himself that he chooses (consistent with the policies and procedures of

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the facility where he is housed) at his own expense.

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Plaintiff fares no better under the Federal Rules of Evidence. Federal Rule of Evidence 706

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provides for court appointment of an expert witness upon a party's motion or on its own volition. AIf

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scientific, technical, or other specialized knowledge will assist the trier of fact to understand the

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evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

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experience, training, or education, may testify thereto in the form of an opinion or otherwise . . . @

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Fed. R. Evid. 702. The Court has the discretion to appoint an expert and to apportion costs, including

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the apportionment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified

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School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), however, where the costs would likely be

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apportioned to the government, the Court should exercise caution.

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Plaintiff=s pro se, in forma pauperis status alone is not grounds for the appointment of an expert

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witness to assist Plaintiff with his case and Rule 706 is not meant to provide an avenue to avoid the in

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forma pauperis statute and its prohibition against using public funds to pay for the expenses of

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witnesses. Manriquez v. Huchins, No. 1:09-cv-00456-LJO-BAM PC, 2012 WL 5880431, at *12 (E.D.

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Cal. Nov. 21, 2012) (quotation marks and citations omitted), nor does Rule 706 contemplate court

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appointment and compensation of an expert witness as an advocate for Plaintiff, Faletogo v. Moya,

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No. 12cv631 GPC (WMc), 2013 WL 524037, at *2 (S.D. Cal. Feb. 23, 2013) (quotation marks

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omitted).

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The appointment of an expert witness under Rule 706 is intended to benefit the trier of fact, not

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a particular litigant, and here, the medical care issue is not of such complexity that the Court requires

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the assistance of a neutral expert at this time. Faletogo, 2013 WL 524037, at *2; Bontemps v. Lee, No.

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2:12-cv-0771 KJN P, 2013 WL 417790, at *3-4 (E.D. Cal. Jan. 31, 2013); Honeycutt, 2011 WL

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6301429, at *1; Wilds, 2011 WL 737616, at *4; Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010

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WL 2228427, at *1 (E.D. Cal. Jun. 3, 2010). Further, a Findings and Recommendation to dismiss

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Plaintiff's only medical claim under the Eighth Amendment recently issued and is awaiting objections
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and/or adoption by the District Court. Assuming that the Findings and Recommendation is adopted,

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there will be no medical issues in this action for the trier of fact to benefit from appointment of an

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expert witness.

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While there are currently no pending matters in which the Court requires special assistance,

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Ford, 291 F.3d at 1090; Walker, 180 F.3d at 1071, Plaintiff is not foreclosed from requesting

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appointment of an expert witness if the pending Findings and Recommendation is not adopted and his

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Eighth Amendment claim against Defendant Byers is not dismissed and when the issues in any

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medical issues that remain in this action are presented to the trier of fact. Moreover, the Court is no

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confronted with any current need for explanation by an expert. Accordingly, Plaintiff=s motion for the

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appointment of an expert witness is DENIED.

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IT IS SO ORDERED.
Dated:

March 18, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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