Owens v. Clark et al

Filing 70

ORDER signed by Magistrate Judge Kendall J. Newman on 12/20/17 DENYING 60 Motion for appointment of an expert and DENYING 65 Motion for a physical examination. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK OWENS,

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No. 2:15-cv-0982 TLN KJN P

Plaintiff,
v.

ORDER

JACKIE CLARK, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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On October 25, 2017, plaintiff filed a motion for a “natural expert and/or medical expert,” and on

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November 8, 2017, plaintiff filed a motion for physical examination. As set forth below,

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plaintiff’s motions are denied.

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I. Motion for Appointment of Expert

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Plaintiff requests a court-appointed neutral expert under Rule 706 of the Federal Rules of

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Evidence, and asks the court to apportion all of the fees to defendants because plaintiff is

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indigent. Plaintiff argues that most of the defendants are medical doctors and medical personal,

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and such an expert will promote accurate fact-finding, and assist the trier of fact. Plaintiff argues

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that “expert opinion will almost [always] be necessary to establish the necessary level of

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deliberate indifference,” citing Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988); Turner

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v. Cox, 569 F. App’x 463, 468 (7th Cir. 2014). (ECF No. 60 at 2.)
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A. Standards

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Federal Rule of Evidence 706 provides “the court may order the parties to show cause

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why expert witnesses should not be appointed and may ask the parties to submit nominations.

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The court may appoint any expert that the parties agree on and any of its own choosing.” Fed. R.

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Evid. 706(a). However, court-appointed experts typically are used in complex litigation where

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the record is not clearly developed by the parties, and generally serve the purpose of aiding the

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court in understanding the subject matter at hand. See Walker v. Am. Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (appointing a physician expert witness

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where medical testimony on record was “not particularly clear”); Woodroffe v. Oregon, 2014 WL

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1383400, at *5 (D. Or. April 8, 2014) (“This Rule permits a court to appoint a neutral expert to

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assist the court to understand complex, technical, or esoteric subject matter.”); In re Joint E. & S.

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Districts Asbestos Litig., 830 F. Supp. 686, 693 (E.D. N.Y. 1993) (noting that court appointment

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of experts is appropriate only in “rare circumstances” and should be reserved for “exceptional

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cases” in which the ordinary adversarial process does not suffice, such as complex mass tort

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problems.) Courts do not invoke Rule 706 simply to “appoint an expert on behalf of an indigent

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civil party.” Woodroffe, 2014 WL 1383400, at *5; see also Gorton v. Todd, 793 F. Supp. 2d

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1171, 1178 n.6 (E.D. Cal. 2011) (where “all parties agree[d]” Rule 706 did not permit the

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appointment of a neutral expert witness solely for an indigent prisoners’ “own benefit” in aiming

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to prove deliberate indifference.)1

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B. Pleading Allegations

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This action proceeds on plaintiff’s claims that in 2014, defendants Jackie Clark, Francis

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Ko, M.D., Michele Ditomas, M.D., Teresa Zink, R.N., and Wendy Harris were deliberately

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indifferent to plaintiff’s serious needs for pain relief. (ECF No. 24.) Specifically, plaintiff alleges

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that Dr. Ko discontinued plaintiff’s morphine prescription after methamphetamine was found in

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plaintiff’s urine sample, and failed to timely provide alternative pain medication. Plaintiff alleges

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In Gorton, the District Court Judge found the Magistrate Judge’s adjudication of the request to
appoint an expert clearly erroneous because of the failure to provide a reason for the denial. The
District Court Judge also found the facts of that case suggested an expert might have been
necessary to promote accurate factfinding. Id. at 1179.
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that defendant Zink, a female, collected a urine sample from him without wearing gloves in an

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inmate restroom “not kept very clean and is a hot spot for drug deals and drug use,” in violation

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of CDCR policy that collections be by staff members of the same gender and wear gloves, and

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thereby contaminated the urine sample resulting in the discontinuation of the morphine

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prescription. (ECF No. 24 at 7.) Plaintiff alleges that defendant Dr. DiTomas was a supervising

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doctor who had the authority to overturn Dr. Ko’s order discontinuing the morphine prescription,

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yet failed to do so. Finally, plaintiff contends that defendant Clark denied plaintiff’s

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administrative appeal, and defendant Harris processed the appeal as routine rather than as an

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emergency, both in deliberate indifference to plaintiff’s serious need for pain medication by

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further delaying his receipt of appropriate alternative pain medications. Plaintiff argues his need

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for pain medication is supported by his morphine prescription received since 2008 until Dr. Ko

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discontinued same, as well as Dr. Ko’s October 4, 2013 chrono in which Dr. Ko stated: “This is a

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37 year old male with history of gunshot wound in 1995 resulting in chronic low back pain,

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sciatica, and left foot drop. Additionally, he is status post cervical fusion C5-6 which had

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complications resulting in chronic neck pain . . . .” (ECF No. 24 at 106.)

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C. Discussion

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First, to the extent that plaintiff seeks appointment of an expert witness for his own

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benefit, the court has no authority to grant him such relief. Rule 706(a) of the Federal Rules of

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Evidence permits the court to appoint only neutral expert witnesses. Id. Moreover, “28 U.S.C.

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§ 1915 does not authorize the court to appoint an expert for plaintiff’s benefit to be paid by the

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court.” Gorton, 793 F. Supp. 2d at 1184 n.11.

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Second, plaintiff fails to demonstrate that this action is so complex that it requires the

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appointment of an expert witness to assist the trier of fact. Plaintiff does not explain how his

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deliberate indifference claims are factually or legally complex. Plaintiff's claims of deliberate

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indifference to serious medical need are not so complex that the court requires a neutral expert at

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the summary judgment stage. See, e.g., Noble v. Adams, 2009 WL 3028242, at *1 (E.D. Cal.

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Sept. 16, 2009) (denying plaintiff's request to appoint medical expert witness in section 1983

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

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this action are not particularly complex.”). Rather, this case involves a relatively straightforward

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Eighth Amendment claim that will turn on the nature of each defendant’s response to plaintiff’s

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serious medical need.
Plaintiff’s motion for a neutral expert under Rule 706 is denied.

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II. Motion for Physical Exam

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Plaintiff seeks an order for a physical examination of plaintiff under Rules 35 and 45 of

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the Federal Rules of Civil Procedure, and Rule 706 of the Federal Rules of Evidence. (ECF No.

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65.) Plaintiff argues that such independent physical exam will assist the trier of fact with all the

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medical records plaintiff has provided. Specifically, plaintiff alleges that defendant Francis Ko is

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being sued for a denial of medical care and Eighth Amendment violation, and contends that Ko

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“went against his own diagnosis of plaintiff,” by the following responses to Requests for

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Admissions:
No. 4 response (set one): “Admit only to the extent that the pain alleged by plaintiff was

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self-preclaimed.” (ECF No. 65 at 2-3.)
No. 2 and No. 6 responses (set two): “it was in no way a written affirmation of chronic

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pain.” (ECF No. 65 at 3.)
Plaintiff argues that defendant Ko prescribed morphine for plaintiff’s chronic pain based

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on the diagnosis of chronic neck, back and sciatic nerve pain from nerve damage, as well as

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plaintiff’s prior cervical fusion. (ECF No. 65 at 3.)
Rule 35 provides that the Court “may order a party whose mental or physical condition --

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including blood group -- is in controversy to submit to a physical or mental examination by a

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suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). Thus, the court may compel a

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party to submit to a physical or mental examination. This rule does not provide that the court

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must provide an expert witness for any party. “Rule 35 does not allow for a physical examination

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of oneself.” Berg v. Prison Health Servs., 376 F. App’x 723, 724 (9th Cir. 2010).

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Here, plaintiff is not entitled to obtain a physical examination of himself. See Fed. R. Civ.

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P. 35; Berg, 376 F. App’x at 724. Moreover, no physical examination of plaintiff is required for

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the determination of plaintiff’s deliberate indifference claims because his medical condition is not

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in dispute. Id. Plaintiff’s motion is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for a the appointment of an expert (ECF No. 60) is denied; and

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2. Plaintiff’s motion for a physical examination (ECF No. 65) is denied.

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Dated: December 20, 2017

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/owen0982.31c.2

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