Anderson v. Krpan et al

Filing 75

ORDER Denying 68 Motion for Appointment of Medical Expert signed by Magistrate Judge Jeremy D. Peterson on 01/24/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWN ANDERSON,
Plaintiff,

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v.

Case No. 1:14-cv-01380-AWI-JDP
ORDER DENYING MOTION FOR
APPOINTMENT OF MEDICAL EXPERT
ECF No. 68

CHRIS KRPAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. ECF No. 16. This action now proceeds on the first amended complaint,

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filed on February 2, 2015, against defendants Chris Krpan and Michael Forster, physicians who

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treated plaintiff. Id.; ECF No. 30. Plaintiff alleges deliberate indifference to his serious medical

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needs in violation of the Eighth Amendment. ECF No. 16 at 9.

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On May 11, 2018, plaintiff moved for the appointment of an independent medical expert.

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ECF No. 58. Plaintiff asserts that this appointment is “necessary to establish the required

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standard of care and to show that defendants deviated from it.” ECF No. 68 at 1. Defendant

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Forster did not oppose the motion, but defendant Krpan filed an opposition on May 21, 2018,

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ECF No. 69. The motion was submitted on the record without oral argument under Local Rule

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230(l) and is now before the court. For the reasons discussed below, plaintiff’s motion will be

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denied.

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Federal Rule of Evidence 706 allows a district court to appoint an expert on either its own

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motion or the motion of a party. Fed. R. Evid. 706(a); Walker v. Am. Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999). “A Rule 706 expert typically acts as an

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advisor to the court on complex scientific, medical, or technical matters.” Armstrong v. Brown,

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768 F.3d 975, 987 (9th Cir. 2014). Expert witnesses should not be appointed where they are not

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necessary or significantly useful for the trier of fact to comprehend a material issue in a case. See

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Gorton v. Todd, 793 F. Supp. 2d 1171, 1181 (E.D. Cal. 2011). Additionally, expert witnesses

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should not be appointed to serve as an advocate for a party. See Faletogo v. Moya, No. 12CV631

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GPC (WMC), 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013).

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The statute authorizing plaintiff’s in forma pauperis status does not authorize the

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expenditure of public funds for expert witnesses. See 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d

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210, 211-12 (9th Cir. 1989) (per curiam) (holding that expenditure of public funds on behalf of

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indigent litigants is proper only when authorized by Congress). An indigent litigant must bear his

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or her own costs of litigation, including costs associated with witnesses. See Tedder, 890 F.2d at

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211. Although a court may apportion costs for the expert witnesses among the parties, including

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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, 180 F.3d at 1071, when the cost

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would likely be apportioned to the state, the court should exercise caution. Moore v. Gipson, No.

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113CV01820BAMPC, 2018 WL 6330409, at *1-2 (E.D. Cal. Dec. 4, 2018).

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After reviewing plaintiff’s motion and the operative complaint, we conclude that the

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issues in this case are not so complex as to require the testimony of a court-appointed expert to

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assist the trier of fact. Plaintiff alleges an Eighth Amendment deliberate indifference claim in his

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amended complaint. ECF No. 16 at 9. To prevail on his claim, plaintiff must show that

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defendants acted with deliberate indifference to his serious medical needs. See Estelle v. Gamble,

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429 U.S. 97, 104 (1983). In the context of such a claim, “the question of whether the prison

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officials displayed deliberate indifference to [plaintiff’s] serious medical needs [does] not demand
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that the jury consider probing, complex questions concerning medical diagnosis and judgment.”

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Levi v. Dir. of Corr., 2006 WL 845733 at *2 (E.D. Cal. 2006) (quoting Ledford v. Sullivan, 105

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F.3d 354, 358 (7th Cir. 1997)). Rather, the jury will need to consider the prison official’s

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subjective knowledge of any risks to plaintiff’s health. See Toguchi v. Chung, 391 F.3d 1051,

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1057 (9th Cir. 2002). Further, the determination of whether plaintiff’s medical needs were

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sufficiently “serious” to amount to an Eighth Amendment violation will depend on plaintiff’s

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subjective testimony regarding the extent of his injuries and how his injuries impacted his daily

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life. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds

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by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“The existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain are examples of indications that a

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prisoner has a ‘serious’ need for medical treatment.”). The assistance of a court-appointed expert

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would not be significantly useful for the trier of fact under these circumstances.
Plaintiff lists several reasons an independent expert should be appointed, including “to

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show that defendants deviated from [the standard of care]”; “to avoid a wholly one-sided

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presentation of opinions”; “to prove [plaintiff] had a serious medical need”; and “to [balance] the

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available professional opinions concerning plaintiff’s medical claims.” ECF No. 58 at 1-2.

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Plaintiff’s asserted reasons suggest that he is seeking an advocate rather than a neutral expert. As

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noted above, Rule 706 does not contemplate that expert witnesses be appointed to serve as an

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advocate for a party. Faletogo, 2013 WL 524037, at *2.

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The facts of this case are no more extraordinary and the legal issues are no more complex

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than those found in the majority of § 1983 prisoner civil rights cases before this court. Plaintiff,

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who is proceeding in forma pauperis, has not indicated that he could pay for costs associated with

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such an expert, so the cost would likely be apportioned to the state. Under these circumstances, it

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would be unjust to require the government to bear the cost of an unnecessary court-appointed

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expert.

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Order

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For the reasons discussed above, plaintiff’s motion for appointment of an independent

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expert, ECF No. 68, is denied.

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IT IS SO ORDERED.

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Dated:
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January 24, 2019
UNITED STATES MAGISTRATE JUDGE

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