Atcherley v. Clark et al

Filing 268

ORDER DENYING Plaintiff's 229 Motion for Appointment of Medical Expert signed by Magistrate Judge Dennis L. Beck on 5/28/2015. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

WILBUR ATCHERLEY,

12

Plaintiff,
v.

13
14

CLARK, et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:12cv00225 LJO DLB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF MEDICAL EXPERT
(Document 229)

17

Plaintiff William Atcherley (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis

18

in this civil rights action pursuant to 28 U.S.C. § 1983. This action is proceeding on Plaintiff’s Third

19

Amended Complaint, filed on January 26, 2015, for violation of the Eighth Amendment and

20

negligence against numerous Defendants.

21

On March 23, 2015, Plaintiff filed the instant motion to appoint a medical expert. Defendants

22

opposed the motion on April 29, 2015. Plaintiff filed his reply on May 21, 2015, and the motion is

23

ready for decision. Local Rule 230(l).1

24

DISCUSSION

25
26

Plaintiff seeks the appointment of a medical expert witness to help him present his case. The
Court has the discretion to appoint a neutral expert and to apportion costs, including the apportionment

27
28

1

Plaintiff’s reply was signed on May 12, 2015.

1

1
2
3

of costs to one side. Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified School Dist., 291
F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability Plan, 180
F.3d 1065, 1071 (9th Cir. 1999).

4
5

This is Plaintiff’s second motion to appoint an expert, and he has not presented any reason for
the Court to depart from its prior denial. Plaintiff suggests that now more evidence can be reviewed,

6

but it does not change the nature of his request. Plaintiff’s request is based mainly on his belief that

7

Defendant Anderson’s expert, Dr. Anwar, has submitted opinions that are not necessarily consistent

8

with Plaintiff’s evaluation of the medical evidence. However, as the Court previously explained, Rule

9
10

706 does not contemplate court appointment and compensation of an expert witness as an advocate for
Plaintiff. Faletogo v. Moya, 2013 WL 524037, *2 (S.D.Cal. 2013) (quotation marks omitted). Indeed,

11

Plaintiff states that one of the reasons he needs an expert is because he “is unable to produce his own

12

or contradictory medical evidence.” ECF No. 229, at 2. While the Court is cognizant of the

13
14

challenges faced by pro se litigants in obtaining expert witnesses, Rule 706 does not permit the
appointment of an expert to benefit one party.

15
16
17
18
19
20
21
22

The appointment of an expert witness under Rule 706 is intended to benefit the trier of fact, not
a particular litigant, and here, the medical issues are not of such complexity that the Court requires the
assistance of a neutral expert. Faletogo, 2013 WL 524037, *2; Bontemps v. Lee, 2013 WL 417790,
*3–4 (E.D.Cal. 2013). “Ultimately, the most important question a court must consider when deciding
whether to appoint a neutral expert witness is whether doing so will promote accurate factfinding.”
Gorton v. Todd, 793 F.Supp.2d 1171, 1179 (E.D.Cal. 2011). As Defendant Anderson points out, the
facts relating to her treatment are not in dispute, and therefore the appointment of a medical expert
would not assist the Court in determining accurate facts.

23
24
25
26

Appointment of an independent expert under “Rule 706 should be reserved for exceptional
cases in which the ordinary adversary process does not suffice.” In re Joint E. & S. Dists. Asbestos
///
///

27
28
2

1
2
3

Litig., 830 F.Supp. 686, 693 (E.D.N.Y.1993) (allowing appointment of independent expert in mass tort
case). This case is not such an exceptional case.
In his reply, Plaintiff suggests that permitting the Defendants to obtain an expert at government

4

expense, and then denying the same for Plaintiff, is “tantamount to a denial of equal protection of the

5

law.” ECF No. 263, at 1. Plaintiff is correct that prisoners are often not able to retain expert

6
7
8
9
10

witnesses, but this is not an issue that the Court can resolve in every instance. Plaintiff has chosen to
sue government Defendants, and they are entitled to defend themselves in a manner they deem fit.
Contrary to Plaintiff’s belief, his inability to afford an expert, or his inability to overcome Defendants’
evidence, does not entitle him to the appointment of an expert witness.
Accordingly, Plaintiff’s request for the appointment of an expert witness is DENIED.

11
12
13
14

IT IS SO ORDERED.
Dated:

/s/ Dennis

May 28, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3