Mario Amador Gonzalez v. Warden Soto et al

Filing 149

ORDER Denying 145 Motion for Appointment of Independent Medical Expert signed by Magistrate Judge Erica P. Grosjean on 10/17/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO AMADOR GONZALEZ,

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Plaintiff,

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v.
DR. SCHARFFENBERG and R.N. S.
SOTO,

Case No. 1:16-cv-01675-DAD-EPG (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF INDEPENDENT
MEDICAL EXPERT
(ECF NO. 145)

Defendants.

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I.

BACKGROUND

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Mario Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is now proceeding on

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Plaintiff’s Eighth Amendment claims against defendants R.N. Soto and Dr. Scharffenberg for

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deliberate indifference to serious medical needs. (ECF No. 94).

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On June 25, 2018, Defendants have filed a motion for summary judgment (ECF No.
123), which Plaintiff has not yet opposed.

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On September 28, 2018, Plaintiff filed a motion for the Court to appoint an independent

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medical expert witness (ECF No. 145). Defendants filed their opposition on October 11, 2018.

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(ECF No. 148). Plaintiff’s motion for the Court to appoint an independent medical expert

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witness is now before the Court.
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II.

APPOINTMENT OF EXPERT WITNESS
1. Plaintiff’s Motion

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Plaintiff requests that the Court appoint an independent medical expert witness to

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analyze his medical records that contain surgical procedures that Plaintiff underwent. Plaintiff

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argues that, as this is a medical case, expert evidence is necessary to establish the required

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standard of care and to show that Defendants deviated from it.

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Plaintiff alleges that Defendants contend that they did nothing wrong, but that

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Plaintiff’s medical records dispute that. Plaintiff alleges that an independent medical expert

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can offer testimony of Plaintiff’s permanent injury from a wrongfully removed catheter. “An

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expert can present the courts with two ways Plaintiff suffered injury. By yanking on a catheter

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injury could be an Avulsion while tube catheter was not properly deflated. Another type of

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injury is where Defendant Scharffenberg shoved the Catheter back into penile hole which is

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Penetration!” (ECF No. 145, p. 1).

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Plaintiff argues that this testimony is essential for the Court and the jury to understand

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what Plaintiff was subjected to by the sadistic removal of the catheter. The expert could also

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bring to light the psychological effects Plaintiff suffered.

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2. Defendants’ Opposition

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Defendants argue that an independent medical expert is not necessary for several

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reasons. First, “Plaintiff has provided no evidence that he has suffered an injury from avulsion

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or penetration, and there is no indication in his medical records that he suffered such an

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injury…. Instead, as reported by the urologist at Tri-City Medical Center, Plaintiff’s priapism

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was likely secondary to his medication and/or urinary retention.” (ECF No. 148, p. 2).

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Second, Defendants have already provided the opinion of a medical expert who has also

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concluded that Plaintiff’s priapism was likely secondary to his medication and/or urinary

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retention.

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Third, Defendants argue that the trier of fact does not require a medical expert to

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determine whether Defendants were deliberately indifferent to Plaintiff’s serious medical

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needs.
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Finally, Defendants point out that there are no independent medical experts that work

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for the Court. Therefore, if the Court appoints a medical expert, the parties must compensate

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the expert. Defendants argue that Plaintiff would likely be unable to pay for an expert, and thus

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Defendants would bear the cost. In a situation such as this, where the government would likely

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bear the cost of the independent expert witness, the Court should exercise caution in appointing

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such a witness.

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3. Legal Standards

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The Court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal

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Rules of Evidence. See Walker v. American Home Shield Long Term Disability Plan, 180

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F.3d 1065, 1071 (9th Cir. 1999). In relevant part, Rule 706(a) states that, “[o]n a party’s

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motion or on its own, the court may order the parties to show cause why expert witnesses

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should not be appointed…” Fed. R. Evid. 706(a). While the Court has the discretion to

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appoint an expert and to apportion costs, including the apportionment of costs to one side, Fed.

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R. Evid. 706(c)(2); Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090

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(9th Cir. 2002), Rule 706 is not a means to avoid the in forma pauperis statute’s “prohibition

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against using public funds to pay for the expenses of witnesses,” Manriquez v. Huchins, 2012

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WL 5880431, at *12 (E.D. Cal. 2012), nor does Rule 706 “contemplate court appointment and

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compensation of an expert witness as an advocate for one of the parties,” Faletogo v. Moya,

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2013 WL 524037, at *2 (S.D. Cal. 2013).

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“Where a party has filed a motion for appointment of a neutral expert under Rule 706,

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the court must provide a reasoned explanation of its ruling on the motion. Several factors guide

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the court’s decision. First, and most importantly, the court must consider whether the opinion

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of a neutral expert will promote accurate fact finding. The court may also consider the ability

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of the indigent party to obtain an expert and the significance of the rights at stake in the case.

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Expert witnesses should not be appointed where they are not necessary or significantly useful

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for the trier of fact to comprehend a material issue in a case.” Johnson v. Cate, 2015 WL

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5321784, at *2 (E.D. Cal. 2015) (citations omitted).

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4.

Discussion

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The Court will not appoint a medical expert in this case. The most important factor is

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whether the appointment will promote accurate fact finding, and Plaintiff has failed to show

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that it would. Plaintiff alleges that “[a]n expert can present the courts with two ways Plaintiff

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suffered injury. By yanking on a catheter injury could be an Avulsion while tube catheter was

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not properly deflated. Another type of injury is where Defendant Scharffenberg shoved the

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Catheter back into penile hole which is Penetration!”

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Defendants are correct that Plaintiff has not submitted any evidence in support of his motion

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(such as his medical records) showing that he may have suffered an injury from an avulsion or

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(ECF No. 145, p. 1).

However,

penetration.

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Additionally, Plaintiff alleges that his medical records dispute Defendants’ contentions,

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and Plaintiff may submit those records in opposition to Defendants’ motion for summary

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judgment. Plaintiff has not argued that the Court will be unable to understand or interpret those

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records without the assistance of an independent expert. Moreover, Plaintiff does not need an

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expert to testify that defendant Scharffenberger shoved the catheter back into his penile hole.

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As this allegation is related to Plaintiff’s experience, it appears that Plaintiff will be able to

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provide this testimony himself.

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Furthermore, Plaintiff’s request makes it clear that he is hoping for an expert witness to

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advocate for his position. This is not a proper use of the rules providing for a neutral expert.

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As discussed above, this rule is not to be used for the purpose using public funds to pay for

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Plaintiff’s witnesses.

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Accordingly, the Court finds that Plaintiff has failed to establish that an expert witness

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is necessary or significantly useful in the Court’s consideration of Defendants’ motion for

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summary judgment.

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III.

ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for the

Court to appoint an independent medical expert witness is DENIED.

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IT IS SO ORDERED.
Dated:

October 17, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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