Scott v. Keller

Filing 158

ORDER signed by Magistrate Judge Peggy A. Leen on 11/10/14 DENYING 155 Motion to Appoint Medical Expert. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAURICE R. SCOTT,

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Case No. 2:07-cv-00184-KJD-PAL
Plaintiff,

v.

ORDER
(Mtn for Exam – Dkt. #155)

MTA KELLER, et al.,

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Defendants.

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This matter is before the court on Plaintiff Maurice R. Scott’s Motion Under Rule

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35(a)(2) for Physical and Mental Examination of Persons (Dkt. #155) filed August 4, 2014. The

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court has considered the Motion, Defendants Moser’s and Wagner’s Opposition (Dkt. #156) filed

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August 7, 2014, and Plaintiff’s untimely Reply (Dkt. #157) filed September 8, 2014.

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Plaintiff is a prisoner proceeding in this action pro se and in forma pauperis. The only

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remaining claim in this case is Plaintiff’s claim that Defendants Moser and Wagner violated the

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Eighth Amendment by causing a delay in Plaintiff’s receipt of medical attention for an injured

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hand. See Order (Dkt. #128). The Motion requests the court order Plaintiff to be seen by an

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orthopedic specialist physician who can “give an expert opinion, diagnose, and screen Plaintiff’s

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medical records.”

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Defendants oppose the Motion, asserting that there is no dispute that Plaintiff’s hand was

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fractured, and the medical treatment Plaintiff received is not in issue. The sole issue is whether

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the alleged delay in treatment violated Plaintiff’s rights under the Eighth Amendment—

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specifically, whether Defendants were aware of an excessive risk of harm, and whether they

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deliberately disregarded that risk. Defendants assert that the testimony of an orthopedic expert

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will not aid the fact-finder in that determination. Additionally, Defendants assert that Federal

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Rule of Civil Procedure 35 is not the appropriate basis for Plaintiff’s Motion because he is

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seeking information about himself and has not shown good cause exists to order the examination.

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Instead, Rule 706 of the Federal Rules of Evidence governs the court’s appointment of an expert

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witness when scientific, technical, or other specialized knowledge will assist the fact finder’s

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understanding of the evidence to decide a fact in issue. Defendants contend the appointment of

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an orthopedic specialist is unnecessary because Plaintiff’s medical condition is not in issue.
Plaintiff replies that he cannot give a medical opinion because he is not a trained

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physician, and expert testimony is required to prove medical malpractice at trial.

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Under Rule 706 of the Federal Rules of Evidence, the court may appoint a neutral expert.

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See Gorton v. Todd, 793 F. Supp. 2d 1171, 1178 (E.D. Cal. 2011) (citing In re High Fructose

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Corn Syrup Antitrust Lit., 295 F.3d 651, 655 (7th Cir. 2002). The decision whether to appoint an

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expert under FRE 706 is discretionary, but ultimately, the court must decide whether appointing

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a neutral expert will promote accurate fact finding. See Gorton, 793 F. Supp. 2d at 1179 (citing

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29 Charles Alan Wright, et al., Fed. Prac. & Proc. § 6304 (3d ed. Supp. 2011)).

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Here, Plaintiff’s only remaining claim is whether Defendants Moser and Wagner were

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deliberately indifferent to Plaintiff’s serious medical need. The court finds that appointment of

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an expert is not required here. The jury will be able to evaluate Defendants Moser’s and

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Wagner’s subjective beliefs with an instruction concerning deliberate indifference and without

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an expert’s assistance. Under the facts of this case, the jury need not consider complex questions

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of medical diagnosis and judgment like they would in a medical malpractice case This is not a

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medical malpractice case, and Plaintiff’s injuries are undisputed. The only issue for the jury is a

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subjective inquiry into the state of mind of the Defendants. An expert is not necessary to opine

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whether Plaintiff had serious medical needs because the symptoms he exhibited—i.e., a broken

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finger—are not beyond a lay person’s grasp.
Accordingly,

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IT IS ORDERED that Plaintiff’s Motion to Appoint Medical Expert (Dkt. #155) is
DENIED.
Dated this 10th day of November, 2014.

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____________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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