Heilman v. Cook et al

Filing 112

ORDER denying 98 Plaintiff's Motion for Appointment of Medical Expert. Signed by Magistrate Judge Mitchell D. Dembin on 9/21/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14cv1412-JLS-MDD

THOMAS JOHN HEILMAN,

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ORDER DENYING
PLAINTIFF’S MOTION FOR
APPOINTMENT OF MEDICAL
EXPERT

Plaintiff,

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v.
J. COOK, et al.,

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[ECF No. 98]
Defendants.

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On August 19, 2016, Plaintiff filed a Motion asking the Court to

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appoint a neutral medical expert witness and to do so without requiring

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him to prepay his portion of associated costs to the expert (such that his

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portion of costs would be withdrawn from his prison account as funds

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are available under 28 U.S.C. § 19151). (Doc. No. 98). Plaintiff states

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The in forma pauperis (IFP) statute, 28 U.S.C. § 1915, does not waive
the requirement of the payment of fees or expenses for witnesses in a §

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14cv1412-JLS-MDD

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that an expert should be appointed because he is indigent and

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unrepresented and has been unable to retain his own expert despite

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diligent attempts, and because the Defendants have retained their own

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medical expert whose “allegiance is “tainted,” such that Plaintiff will be

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prejudiced unless an independent expert is appointed. Plaintiff further

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contends an expert would assist the trier of fact in ruling on the

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anticipated cross-motions for summary judgment and at trial.

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As Plaintiff notes, district courts have broad discretion to appoint
an expert witness, either by their own motion or on motion of a party.

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FED. R. EVID. 706(a); McKinney v. Anderson, 924 F.2d 1500, 1510-11

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(9th Cir. 1991) (overruled on other grounds by Helling v. McKinney, 502

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U.S. 903 (1991)).

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“Reasonably construed, [Rule 706] does not contemplate the

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appointment of, and compensation for, an expert to aid one of the

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parties.” Walker v. Woodford, 2008 WL 793413 (S.D. Cal., March 24,

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2008) (citation omitted); see also Faletogo v. Moya, 2013 WL 524037

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(S.D. Cal., Feb. 12, 2013) (same). A court appointed expert’s function is

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to aid the Court in understanding the issues, not to aid the litigant in

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presenting his claims. Gomez v. Sogge, 2010 WL 2612319 (N.D. Cal.

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June 24, 2010).

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Having reviewed Plaintiff’s request and the claims in Plaintiff’s
case, the Court finds that good cause to appoint an expert witness does

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1983 prisoner civil rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th
Cir. 1993).
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not exist. Though Plaintiff contends he is seeking appointment of an

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independent, neutral expert, his arguments show he is seeking

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appointment of an expert to aid him since he has been unable to retain

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his own expert. Further, the Court finds it is not necessary to appoint a

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neutral expert to assist the Court at this time. Accordingly, Plaintiff’s

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Motion for a Court-appointed expert witness is DENIED.

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IT IS SO ORDERED.
Dated: September 21, 2016

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