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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 RAUL ARELLANO, JR., Case No.: 14-cv-590 JLS (JLB) Plaintiff, 10 11 v. 12 ORDER DENYING MOTION FOR APPOINTMENT OF MEDICAL EXPERT OFFICER HODGE et al., Defendants. 13 [ECF No. 141] 14 15 Before the Court is Plaintiff’s motion for appointment of a medical expert or, 16 alternatively, for a list of addresses of medical experts. (ECF No. 141.) Plaintiff asserts in 17 his motion that he would like to retain an expert in this case with specialized knowledge of 18 the Gabapentin medication, lower back injuries, and nerve damage, as these “are [the] 19 issues [his] case is about.” (Id. at 1.) Plaintiff requests that the Court assign him an expert 20 because the prison law library does not contain information on expert witnesses, and he 21 does not have access to anyone outside of prison who can help him retain an expert. (Id.) 22 At the Court’s request, Defendants filed a response in opposition to Plaintiff’s 23 motion on May 26, 2017. (ECF No. 143.) Plaintiff filed a reply to Defendants’ opposition 24 on June 13, 2017.1 (ECF No. 148.) For the reasons explained below, Plaintiff’s motion to 25 be appointed a medical expert is DENIED. 26 27 28 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.) 1 14-cv-590 JLS (JLB) 1 Federal Rule of Evidence 706 allows a district court to appoint an expert on either 2 its own motion or the motion of a party. Fed. R. Evid. 706(a); McKinney v. Anderson, 924 3 F.2d 1500, 1510–11 (9th Cir. 1991), overruled on other grounds by Helling v. McKinney, 4 502 U.S. 903 (1991). Appointment of an expert witness is generally appropriate when 5 “scientific, technical, or other specialized knowledge will assist the trier of fact to 6 understand the evidence or decide a fact in issue.” Torbert v. Gore, 14cv2911 BEN (NLS), 7 2016 WL 3460262, at *2 (S.D. Cal. June 23, 2016) (quoting Levi v. Dir. Of Corr., 8 CIVS020910LKKKJMP, 2006 WL 845733, at *1 (E.D. Cal. Mar. 31, 2006)). Expert 9 witnesses should not be appointed where they are not necessary or significantly useful for 10 the trier of fact to comprehend a material issue in a case. Gorton v. Todd, 793 F.Supp.2d 11 1171, 1181 (E.D. Cal. 2011). Additionally, expert witnesses should not be appointed to 12 serve as an advocate for a party. Faletogo v. Moya, 12-cv-631-GPC-WMc, 2013 WL 13 524037, at *2 (S.D. Cal. Feb. 12, 2013). 14 Rule 706 is not a means to avoid the in forma pauperis statute, 28 U.S.C. § 1915, 15 and its prohibition against using public funds to pay the expenses of witnesses in a § 1983 16 prisoner civil rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Thus, courts 17 should appoint an expert for an indigent inmate and apportion all costs to an opponent only 18 “when the expert would significantly help the court” understand complex or compelling 19 issues. Bovarte v. Schwarzenegger, 08-cv-1661-LAB-NLS, 2011 WL 748597, at *20 (S.D. 20 Cal. Sept. 21, 2011), Report and Recommendation adopted at 2012 WL 760620 (S.D. Cal. 21 Mar. 7, 2012). 22 After reviewing the parties’ motion and opposition papers and the operative 23 complaint, the Court concludes that the issues in this case are not so complex as to require 24 the testimony of expert witnesses to assist the trier of fact. Plaintiff alleges Eighth and 25 Fourteenth Amendment deliberate indifference and equal protection claims in his Fourth 26 Amended Complaint. (ECF No. 126.) To prevail on his Eighth Amendment deliberate 27 indifference claim, Plaintiff must show that Defendants acted with deliberate indifference 28 to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1983). In the 14-cv-590 JLS (JLB) 1 context of such a claim, “the question of whether the prison officials displayed deliberate 2 indifference to [Plaintiff’s] serious medical needs [does] not demand that the jury consider 3 probing, complex questions concerning medical diagnosis and judgment.” Torbert, 2016 4 WL 3460262, at *2 (quoting Levi, 2006 WL 845733, at *1). Rather, the jury will need to 5 consider the prison official’s subjective knowledge of any risks to Plaintiff’s health. See 6 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2002). Courts have declined to appoint 7 an expert under such circumstances. Torbert, 2016 WL 3460262, at *2. Further, the 8 determination of whether Plaintiff’s medical needs were sufficiently “serious” to amount 9 to an Eighth Amendment violation will depend on Plaintiff’s subjective testimony 10 regarding the extent of his injuries and how his injuries impacted his daily life. See 11 McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other grounds 12 by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“The existence of 13 an injury that a reasonable doctor or patient would find important and worthy of comment 14 or treatment; the presence of a medical condition that significantly affects an individual’s 15 daily activities; or the existence of chronic and substantial pain are examples of indications 16 that a prisoner has a ‘serious’ need for medical treatment.”) The assistance of an expert 17 witness would be unnecessary under these circumstances. 18 To prevail on his Fourteenth Amendment equal protection claim, Plaintiff must show 19 that Defendants either acted with an intent or purpose to discriminate against him based 20 upon his membership in a protected class, Barren v. Harrington, 152 F.3d 1193, 1194–95 21 (9th Cir. 1998), or intentionally treated him differently from other similarly situated 22 individuals without a rational basis for the difference in treatment, Engquist v. Oregon 23 Dep’t of Agriculture, 553 U.S. 591, 601 (2008). Similar to Plaintiff’s Eighth Amendment 24 claim, with respect to this claim, a jury need not consider complex scientific, technical, or 25 other specialized questions of fact that would require the appointment of an expert. 26 In addition, Defendants have already appointed a medical expert. (ECF No. 143 at 27 3.) This expert “can assist the jury with any issues in this case not within the common 28 knowledge.” Jimenez v. Sambrano, 04cv1833 L (PCL), 2009 WL 653877, at *2 (S.D. Cal. 14-cv-590 JLS (JLB) 1 Mar. 12, 2009). Because this case is not complex, the opinion of one unbiased medical 2 expert is sufficient to assist the trier of fact at trial. See id. The testimony of a second 3 medical expert is unnecessary. 4 Plaintiff makes several arguments in his reply brief as to why he should not be 5 required to rely on Defendants’ expert witness; however, none are availing. First, Plaintiff 6 argues that he has “not received a complete discovery statement of what [Defendants’ 7 expert] is going to be testifying, and what documents will he be relying to support his 8 testimony.” (ECF No. 148 at 3.) Plaintiff argues that it would be prejudicial to require 9 him to rely on Defendants’ expert without knowing what he will testify to and whether it 10 contradicts Plaintiff’s position. (Id. at 3–4.) The Court notes that under the operative 11 Scheduling Order, Defendants are not required to provide Plaintiff with their expert 12 witness’s report until September 8, 2017. (See ECF No. 139, ¶ 3.) 13 Second, Plaintiff argues that the opinion of Defendants’ expert will be biased, as the 14 expert is likely to exaggerate his testimony, “omit[] all evidence and the truth of medication 15 that is damaging to the party that hire[d] him,” and “rely on documents prepared by 16 Defendants” that “do[] not mention anything about [Plaintiff’s] 602’s (grievances), or 7362 17 Forms (medical requests) where [Plaintiff] specif[ies] every element required to satisfy the 18 cruel and unusual punishment.” (ECF No. 148 at 4–5.) Plaintiff contends that if he is 19 appointed his own expert, the expert will be able to explain to the jury the damages and 20 injuries that Plaintiff has suffered, Plaintiff’s medical symptoms, pain, and suffering, and 21 Plaintiff’s medical requests and grievances. (Id. at 5.) Plaintiff fails to assert a proper basis 22 for the appointment of an expert witness. Here, Plaintiff is asking the Court to appoint him 23 an expert witness not to help the trier of fact better understand a complex issue in this case 24 but instead to advocate on Plaintiff’s behalf. 25 contemplate that expert witnesses be appointed to serve as an advocate for a party. 26 Faletogo, 2013 WL 524037, at *2. 27 Defendants’ expert witness will deliver biased testimony at trial, Plaintiff will have the 28 opportunity to present evidence of bias on cross-examination. As noted above, Rule 706 does not To the extent that Plaintiff is concerned that 14-cv-590 JLS (JLB) 1 Further, because Plaintiff is proceeding in forma pauperis (ECF No. 3), the Court 2 assumes that Plaintiff is unable to compensate an expert witness.2 As noted above, under 3 the in forma pauperis statute, 28 U.S.C. § 1915, the Court is prohibited from using public 4 funds to pay the expenses of witnesses in a § 1983 prisoner civil rights action. Dixon v. Ylst, 5 990 F.2d 478, 480 (9th Cir. 1993). Thus, if the Court were to appoint an expert on behalf 6 of Plaintiff, it would be required to apportion the cost of Plaintiff’s witness to Defendants. 7 See Fed. R. Evid. 706(b). In instances such as this, where the government would be 8 required to bear the cost, the Court must exercise caution. Jimenez, 2009 WL 653877, at 9 *2. Here, the Court finds that because the facts of this case are no more extraordinary and 10 the legal issues are no more complex than those found in the majority of the § 1983 prisoner 11 civil rights cases before this Court, and because Defendants have already appointed a 12 medical expert in this case, it would be unjust to require the government to bear the cost of 13 an unnecessary additional medical expert witness. 14 Finally, the Court is unable to provide Plaintiff with a list of addresses of the expert 15 witnesses. The Court does not maintain this type of information and, in any event, the 16 Court may not provide legal advice or assistance to any litigant. 17 For the reasons discussed above, Plaintiff’s motion for appointment of an expert 18 witness (ECF No. 141) is DENIED. 19 IT IS SO ORDERED. 20 Dated: June 22, 2017 21 22 23 24 25 26 27 28 2 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)

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