Arellano v. R.J. Donovan Detention Facility et al

Filing 149

ORDER Denying 141 Motion for Appointment of Medical Expert. Signed by Magistrate Judge Jill L. Burkhardt on 6/22/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO, JR.,

Case No.: 14-cv-590 JLS (JLB)
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF MEDICAL
EXPERT

OFFICER HODGE et al.,
Defendants.

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[ECF No. 141]

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Before the Court is Plaintiff’s motion for appointment of a medical expert or,

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alternatively, for a list of addresses of medical experts. (ECF No. 141.) Plaintiff asserts in

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his motion that he would like to retain an expert in this case with specialized knowledge of

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the Gabapentin medication, lower back injuries, and nerve damage, as these “are [the]

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issues [his] case is about.” (Id. at 1.) Plaintiff requests that the Court assign him an expert

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because the prison law library does not contain information on expert witnesses, and he

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does not have access to anyone outside of prison who can help him retain an expert. (Id.)

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At the Court’s request, Defendants filed a response in opposition to Plaintiff’s

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motion on May 26, 2017. (ECF No. 143.) Plaintiff filed a reply to Defendants’ opposition

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on June 13, 2017.1 (ECF No. 148.) For the reasons explained below, Plaintiff’s motion to

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be appointed a medical expert is DENIED.

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Although Plaintiff’s reply brief was filed after the court-ordered deadline, Plaintiff has
demonstrated good cause for the late filing. (See ECF No. 148 at 1.)
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Federal Rule of Evidence 706 allows a district court to appoint an expert on either

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its own motion or the motion of a party. Fed. R. Evid. 706(a); McKinney v. Anderson, 924

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F.2d 1500, 1510–11 (9th Cir. 1991), overruled on other grounds by Helling v. McKinney,

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502 U.S. 903 (1991). Appointment of an expert witness is generally appropriate when

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“scientific, technical, or other specialized knowledge will assist the trier of fact to

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understand the evidence or decide a fact in issue.” Torbert v. Gore, 14cv2911 BEN (NLS),

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2016 WL 3460262, at *2 (S.D. Cal. June 23, 2016) (quoting Levi v. Dir. Of Corr.,

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CIVS020910LKKKJMP, 2006 WL 845733, at *1 (E.D. Cal. Mar. 31, 2006)). Expert

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

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the trier of fact to comprehend a material issue in a case. Gorton v. Todd, 793 F.Supp.2d

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1171, 1181 (E.D. Cal. 2011). Additionally, expert witnesses should not be appointed to

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serve as an advocate for a party. Faletogo v. Moya, 12-cv-631-GPC-WMc, 2013 WL

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

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Rule 706 is not a means to avoid the in forma pauperis statute, 28 U.S.C. § 1915,

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and its prohibition against using public funds to pay the expenses of witnesses in a § 1983

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prisoner civil rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Thus, courts

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should appoint an expert for an indigent inmate and apportion all costs to an opponent only

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“when the expert would significantly help the court” understand complex or compelling

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issues. Bovarte v. Schwarzenegger, 08-cv-1661-LAB-NLS, 2011 WL 748597, at *20 (S.D.

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Cal. Sept. 21, 2011), Report and Recommendation adopted at 2012 WL 760620 (S.D. Cal.

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Mar. 7, 2012).

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After reviewing the parties’ motion and opposition papers and the operative

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complaint, the Court concludes that the issues in this case are not so complex as to require

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the testimony of expert witnesses to assist the trier of fact. Plaintiff alleges Eighth and

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Fourteenth Amendment deliberate indifference and equal protection claims in his Fourth

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Amended Complaint. (ECF No. 126.) To prevail on his Eighth Amendment deliberate

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indifference claim, Plaintiff must show that Defendants acted with deliberate indifference

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to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1983). In the

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context of such a claim, “the question of whether the prison officials displayed deliberate

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indifference to [Plaintiff’s] serious medical needs [does] not demand that the jury consider

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probing, complex questions concerning medical diagnosis and judgment.” Torbert, 2016

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WL 3460262, at *2 (quoting Levi, 2006 WL 845733, at *1). Rather, the jury will need to

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consider the prison official’s subjective knowledge of any risks to Plaintiff’s health. See

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Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2002). Courts have declined to appoint

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an expert under such circumstances. Torbert, 2016 WL 3460262, at *2. Further, the

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determination of whether Plaintiff’s medical needs were sufficiently “serious” to amount

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to an Eighth Amendment violation will depend on Plaintiff’s subjective testimony

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regarding the extent of his injuries and how his injuries impacted his daily life. See

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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

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

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

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

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that a prisoner has a ‘serious’ need for medical treatment.”) The assistance of an expert

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witness would be unnecessary under these circumstances.

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To prevail on his Fourteenth Amendment equal protection claim, Plaintiff must show

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that Defendants either acted with an intent or purpose to discriminate against him based

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upon his membership in a protected class, Barren v. Harrington, 152 F.3d 1193, 1194–95

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(9th Cir. 1998), or intentionally treated him differently from other similarly situated

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individuals without a rational basis for the difference in treatment, Engquist v. Oregon

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Dep’t of Agriculture, 553 U.S. 591, 601 (2008). Similar to Plaintiff’s Eighth Amendment

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claim, with respect to this claim, a jury need not consider complex scientific, technical, or

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other specialized questions of fact that would require the appointment of an expert.

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In addition, Defendants have already appointed a medical expert. (ECF No. 143 at

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3.) This expert “can assist the jury with any issues in this case not within the common

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knowledge.” Jimenez v. Sambrano, 04cv1833 L (PCL), 2009 WL 653877, at *2 (S.D. Cal.

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Mar. 12, 2009). Because this case is not complex, the opinion of one unbiased medical

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expert is sufficient to assist the trier of fact at trial. See id. The testimony of a second

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medical expert is unnecessary.

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Plaintiff makes several arguments in his reply brief as to why he should not be

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required to rely on Defendants’ expert witness; however, none are availing. First, Plaintiff

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argues that he has “not received a complete discovery statement of what [Defendants’

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expert] is going to be testifying, and what documents will he be relying to support his

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testimony.” (ECF No. 148 at 3.) Plaintiff argues that it would be prejudicial to require

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him to rely on Defendants’ expert without knowing what he will testify to and whether it

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contradicts Plaintiff’s position. (Id. at 3–4.) The Court notes that under the operative

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Scheduling Order, Defendants are not required to provide Plaintiff with their expert

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witness’s report until September 8, 2017. (See ECF No. 139, ¶ 3.)

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Second, Plaintiff argues that the opinion of Defendants’ expert will be biased, as the

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expert is likely to exaggerate his testimony, “omit[] all evidence and the truth of medication

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that is damaging to the party that hire[d] him,” and “rely on documents prepared by

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Defendants” that “do[] not mention anything about [Plaintiff’s] 602’s (grievances), or 7362

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Forms (medical requests) where [Plaintiff] specif[ies] every element required to satisfy the

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cruel and unusual punishment.” (ECF No. 148 at 4–5.) Plaintiff contends that if he is

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appointed his own expert, the expert will be able to explain to the jury the damages and

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injuries that Plaintiff has suffered, Plaintiff’s medical symptoms, pain, and suffering, and

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Plaintiff’s medical requests and grievances. (Id. at 5.) Plaintiff fails to assert a proper basis

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for the appointment of an expert witness. Here, Plaintiff is asking the Court to appoint him

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an expert witness not to help the trier of fact better understand a complex issue in this case

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but instead to advocate on Plaintiff’s behalf.

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contemplate that expert witnesses be appointed to serve as an advocate for a party.

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Faletogo, 2013 WL 524037, at *2.

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Defendants’ expert witness will deliver biased testimony at trial, Plaintiff will have the

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opportunity to present evidence of bias on cross-examination.

As noted above, Rule 706 does not

To the extent that Plaintiff is concerned that

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Further, because Plaintiff is proceeding in forma pauperis (ECF No. 3), the Court

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assumes that Plaintiff is unable to compensate an expert witness.2 As noted above, under

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the in forma pauperis statute, 28 U.S.C. § 1915, the Court is prohibited from using public

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funds to pay the expenses of witnesses in a § 1983 prisoner civil rights action. Dixon v. Ylst,

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990 F.2d 478, 480 (9th Cir. 1993). Thus, if the Court were to appoint an expert on behalf

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of Plaintiff, it would be required to apportion the cost of Plaintiff’s witness to Defendants.

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See Fed. R. Evid. 706(b). In instances such as this, where the government would be

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required to bear the cost, the Court must exercise caution. Jimenez, 2009 WL 653877, at

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*2. Here, the Court finds that because the facts of this case are no more extraordinary and

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the legal issues are no more complex than those found in the majority of the § 1983 prisoner

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civil rights cases before this Court, and because Defendants have already appointed a

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medical expert in this case, it would be unjust to require the government to bear the cost of

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an unnecessary additional medical expert witness.

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Finally, the Court is unable to provide Plaintiff with a list of addresses of the expert

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witnesses. The Court does not maintain this type of information and, in any event, the

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Court may not provide legal advice or assistance to any litigant.

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For the reasons discussed above, Plaintiff’s motion for appointment of an expert

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witness (ECF No. 141) is DENIED.

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IT IS SO ORDERED.

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Dated: June 22, 2017

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Plaintiff does not address in his motion or reply brief whether he would be able to compensate
an expert for his or her fees and costs.

14-cv-590 JLS (JLB)