Vanderbusch v. Enenmoh et al

Filing 43

ORDER DENYING 33 , 37 , 41 Motions for Appointment of Expert Witness and Investigator, and GRANTING 42 Motion for Additional Discovery to Authenticate Documents signed by Magistrate Judge Erica P. Grosjean on 10/13/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY W. VANDERBUSCH,

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Plaintiff,

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v.
JOHN CHOKATOS,

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Defendant.

ORDER DENYING MOTIONS FOR
APPOINTMENT OF EXPERT
WITNESS AND AN INVESTIGATOR,
AND GRANTING MOTION FOR
ADDITIONAL DISCOVERY TO
AUTHENTICATE DOCUMENTS
(ECF Nos. 33, 37, 41, 42.)

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1:13-cv-01422-LJO-EPG-PC

I.

BACKGROUND

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Plaintiff Gary Vanderbusch is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on

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September 5, 2013 by the filing of a complaint. (ECF No. 1.) On the same date, Plaintiff filed a

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Request for Appointment of an Expert Witness and an Investigator, in which he argued that this

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action involves complex medical issues requiring a medical expert, and he will be unable to

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prevail without a medical expert. (ECF No. 6.) On September 16, 2013, the court denied

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Plaintiff’s request, reasoning that the request for an expert witness was premature, as trial had

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not been scheduled in this action. (ECF No. 10.)

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On March 3, 2015, the court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A, and dismissed the complaint for failure to state a claim with leave to amend. (ECF No.

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15.) Plaintiff filed his First Amended Complaint on April 6, 2016. (ECF No. 16.) In his First
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Amended Complaint, Plaintiff alleges that in June 2009, after experiencing pain and weakness,

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Plaintiff was taken to Mercy Hospital and a neurosurgeon recommended neck surgery between

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Plaintiff’s C4 and C5 vertebrae. After returning to California Substance Abuse Treatment

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Facility and State Prison, Corcoran (“SATF”), a neurosurgeon there noted that Plaintiff needed

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extensive physical therapy and that the cervical spine had reversed its normal curvature.

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Beginning in August 2011, Plaintiff began consulting Dr. John Chokatos as his primary care

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physician. Defendant Chokatos repeatedly denied plaintiff treatment, accused Plaintiff of lying,

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and took away medical necessities, including those prescribed by a ten doctor panel to treat

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plaintiff’s spinal condition. Defendant Chokatos repeatedly wrote that plaintiff did not require

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pain medication and was in no pain. Plaintiff also alleges that Defendant Chokatos told him to

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stop wasting Defendant’s time, and said, “there is nothing wrong with you.” Id.

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On June 27, 2016, the Court screened the First Amended Complaint and found

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cognizable claims against Defendant Chokatos for deliberate indifference to medical needs in

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violation of the Eighth Amendment. (ECF No. 18.) On February 24, 2017, the Court issued a

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Scheduling Conference Order, setting s non-expert discovery cut-off of August 11, 2017, an

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expert disclosure deadline of September 8, 2017, and an expert discovery cut-off of November

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10, 2017. (ECF No. 28.) On June 23, 2017, this Court issued a Second Scheduling Order,

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extending the non-expert discovery cut-off to August 31, 2017 at the request of Plaintiff, and

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setting a trial date of December 11, 2018. (ECF No. 32.) On August 21, 2017, Plaintiff moved

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for a sixty-day extension of non-expert discovery to October 31, 2017. (ECF No. 39.) The

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Court granted a forty-five day extension to October 16, 2017. (ECF No. 40.)

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On June 30, 2017, Plaintiff filed a motion to appoint an expert witness and an

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investigator. (ECF No. 33.) On July 12, 2017, Plaintiff filed an identical motion to appoint an

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expert witness and an investigator. (ECF No. 37.) In both motions, Plaintiff argues that this

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action involves complex medical issues requiring a medical expert, and he will be unable to

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prevail without a medical expert. (ECF Nos. 33, 37.) On September 21, 2017, Plaintiff filed an

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objection to Defendant’s expert witness, and requested the appointment of an expert witness to

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depose Defendant’s expert witness. (ECF No. 41.) Plaintiff argues that Defendant’s expert
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witness relies exclusively on the progress notes of Defendant Chokatos, and that Plaintiff has a

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right to respond to Defendants’ allegations by way of an expert witness. Id. On the same date,

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Plaintiff also filed a Request for Additional Discovery on Admissions to Authenticate

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Document, in which he seeks additional discovery in order to request that Defendant

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authenticate medical records for the purpose of introducing them at trial and to show Plaintiff’s

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medical expert for analysis. (ECF No. 42.)
Now before the Court are Plaintiff’s motions for the appointment of an expert witness

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and investigator, (ECF Nos. 33, 37, 41), and request for additional discovery. (ECF No. 42.)
II.

APPOINTMENT OF EXPERT WITNESS
A. Legal Standards

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Pursuant to Fed. R. Evid. 702, “a witness who is qualified as an expert by knowledge,

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skill, experience, training or education may testify in the form of an opinion or otherwise if: (a)

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the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

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understand the evidence or to determine a fact in issue . . . .” The Court has discretion to

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appoint a neutral expert pursuant to Rule 706(a) of the Federal Rules of Evidence. See Students

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of California Sch. for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other

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grounds, 471 U.S. 148 (1985). In relevant part, Rule 706 states that “[o]n a party’s motion or

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on its own, the court may order the parties to show cause why expert witnesses should not be

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appointed . . . .” Fed. R. Evid. 706(a); see also Walker v. American Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Where a party has filed a motion for

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appointment of a neutral expert witness pursuant to Rule 706, the court must provide a

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reasoned explanation of its ruling on the motion. See Gorton v. Todd, 793 F.Supp.2d. 1171,

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1178-79 (E.D. Cal. 2011). An expert witness may be appropriate if the evidence consists of

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complex scientific evidence. McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.1991),

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vacated on other grounds sub. nom., Helling v. McKinney, 502 U.S. 903 (1991). However,

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“expert witnesses should not be appointed under Rule 706 where not necessary or significantly

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useful for the trier of fact to comprehend a material issue in a case. . . . [T]here also must be

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some evidence, admissible or otherwise, that demonstrates a serious dispute that could be
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resolved or understood through expert testimony.” Id. at 1181. The determination to appoint a

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neutral expert rests solely in the court’s discretion. See McKinney, 924 F.2d at 1511; see also

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Sanders v. York, 446 F. App'x 40, 43 (9th Cir. 2011).

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B. Discussion

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First, to the extent that Plaintiff seeks appointment of an expert witness for his benefit,

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the Court has no authority to grant him such relief. As aforementioned, Rule 706(a) of the

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Federal Rules of Evidence permits the Court to appoint only neutral expert witnesses. Honig,

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736 F.2d at 549. Furthermore, “28 U.S.C. § 1915, does not authorize the court to appoint an

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expert for plaintiff's benefit to be paid by the court.” Gorton, 793 F. Supp. 2d at 1184 n.11.

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Thus, if the Court were able to appoint an expert witness in this action, the expert would be

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appointed to assist the Court, and not to depose witnesses or respond to defenses brought by

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Defendant.

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Second, to the extent that Plaintiff seeks appointment of a neutral expert witness, his

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motions are premature. A neutral expert witness may be necessary where there is “some

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evidence, admissible or otherwise, that demonstrates a serious dispute that could be resolved or

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understood through expert testimony.” Gorton, 793 F. Supp. 2d at 1181. No such evidence has

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been filed in this action. At this time, there are no pending matters on which the Court may

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require special assistance, such as to resolve a motion for summary judgment.

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Furthermore, Plaintiff’s claim of deliberate indifference to serious medical need is not

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so complex as to require an expert witness to present or prove the case. See, e.g., Noble v.

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Adams, No. 103CV-05407AWI-SMSPC, 2009 WL 3028242, at *1 (E.D.Cal. Sept. 16, 2009)

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(denying plaintiff's request to appoint medical expert witness in section 1983 action because

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“the issues are not so complex as to require the testimony of an expert”); Lopez v. Scribner,

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2008 WL 551177, at *1 (E.D. Cal. Feb. 27, 2008) (denying plaintiff's request to appoint

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medical expert witness in § 1983 action because “the legal issues involved in this action are not

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particularly complex.”); Hooker v. Adams, 2007 WL 4239570, at *1 (E.D.Cal. Dec. 3, 2007)

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(plaintiff's motion for the appointment of an expert witness denied as “the legal issues involved

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in this action are not particularly complex.”). Plaintiff alleged in his complaint that Defendant
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Chokatos ignored medical information from Plaintiff and from medical records. Plaintiff’s

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claim turns on Defendant’s behavior, not on medical evidence. In other words, Plaintiff’s claim

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for deliberate indifference will require Plaintiff to demonstrate that Dr. Chokatos had

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information indicating that Plaintiff had a serious medical need and that Dr. Chokatos ignored

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that information. Accordingly, Plaintiff’s motions for the appointment of an expert witness are

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denied.

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III.

REQUEST FOR ADDITIONAL DISCOVERY

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Plaintiff also moves for additional discovery in order to request that Defendant

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authenticate medical records for the purpose of introducing them at trial. To the extent that

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Plaintiff seeks to have Defendant authenticate documents produced during discovery,

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Plaintiff’s motion is granted.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motions for the Court to appoint an expert witness and investigator,
(ECF Nos. 33, 37, 41), are DENIED.

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2. Plaintiff’s motion for additional discovery in order to request that Defendant

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authenticate medical records for the purpose of introducing them at trial, (ECF No.

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42.), is GRANTED. Within thirty (30) days of service of this order upon him,

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Plaintiff may serve ten requests for admission upon Defendant concerning

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authentication of any medical records produced by Defendant. Within forty (40)

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days of being served with any requests for admission, Defendant shall serve his

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response in accordance with Fed. R. Civ. P. 36.

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IT IS SO ORDERED.
Dated:

October 13, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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