Aguilar v. Bates et al

Filing 85

ORDER Denying 84 Motion for Appointment of Medical Expert. Signed by Magistrate Judge Marc L. Goldman on 10/9/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Jerry David AGUILAR,

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Case No.: 15-cv-2446-MMA-AGS
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF MEDICAL
EXPERT (ECF No. 84)

Darryl BATES, et al.,

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Defendants.

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On November 5, 2014, plaintiff, an inmate incarcerated at Richard J. Donovan

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Correctional Facility, fractured his right ankle while playing handball. (ECF No. 19, at 3.)

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He subsequently filed this complaint alleging an Eighth Amendment claim under 42 U.S.C.

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§ 1983, claiming that defendants were deliberately indifferent to his serious medical needs

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with respect to his treatment for the fractured ankle. More specifically, in his amended

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complaint (ECF No. 19), plaintiff alleges that defendants did not treat him as promptly as

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they should have. (Id. at 17.) Additionally, plaintiff alleges that defendants were

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deliberately indifferent by not prescribing him certain pain medications and by unduly

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delaying a post-operative MRI. (See id. at 13-15.) Finally, plaintiff alleges that defendants

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did not timely make accommodations for the limitations caused by the injury. (See id. at

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9.)

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In this motion, plaintiff seeks appointment of a neutral medical expert and an expert

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witness. (See ECF No. 84.) Plaintiff asserts that he would like to retain experts in this case

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because of the complexity of the medical treatment involved. (ECF No. 84, at 1.) However,

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because such an expert is unnecessary, plaintiff’s motion is denied.
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15-cv-2446-MMA-AGS

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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, No. 14CV2911 BEN

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

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No. 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, No. 12CV631 GPC (WMC), 2013 WL

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

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After reviewing plaintiff’s motion and the operative complaint, the Court concludes

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that the issues in this case are not so complex as to require the testimony of a court-

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appointed expert to assist the trier of fact. Plaintiff alleges an Eighth Amendment deliberate

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indifference claim in his amended complaint. (ECF No. 19.) To prevail on his 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 context

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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 a court-

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appointed expert would not be significantly useful for the trier of fact under these

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circumstances.

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In addition, defendants have already retained a medical expert. (See ECF No. 84.)

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

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knowledge.” Jiminez 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 medical expert is

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

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is unnecessary.

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Plaintiff contends that if he is appointed his own expert, the expert will be able to

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“provid[e] expert evidence that the treatment he received was with deliberate indifference.”

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(ECF No. 84, at 1.) More specifically, plaintiff contends that an expert witness is

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“necessary to present evidence that the treatment received had been medically unacceptable

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the way prison physicians provided Plaintiff medical care, and delay of treatment was

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harmful causing Plaintiff further injury with deliberate indifference to his serious medical

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needs.” (Id. at 4-5.) In short, plaintiff is asking the Court to appoint him an expert witness

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not to help the trier of fact better understand a complex issue in this case but instead to

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advocate on plaintiff’s behalf. As noted above, Rule 706 does not contemplate that expert

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witnesses be appointed to serve as an advocate for a party. Faletogo, 2013 WL 524037, at

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*2. To the extent that plaintiff is concerned that defendants’ expert witness will deliver

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biased testimony at trial, plaintiff will have the opportunity to present evidence of bias on

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cross-examination.
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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.1 Under the in forma

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pauperis statute, 28 U.S.C. § 1915, the Court is prohibited from using public funds to pay

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the expenses of witnesses in a § 1983 prisoner civil rights action. See Dixon v. Ylst, 990

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

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plaintiff, it would be required to apportion the cost of plaintiff’s witness to defendants. See

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Fed. R. Evid. 706(b). Courts should appoint an expert for an indigent inmate and apportion

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all costs to an opponent only “when the expert would significantly help the court”

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understand complex or compelling issues. Bovarte v. Schwarzenegger, No. 08CV1661

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LAB (NLS), 2011 WL 748597, at *27 (S.D. Cal. Sept. 21, 2011), Report and

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Recommendation adopted at 2012 WL 760620 (S.D. Cal. Mar. 7, 2012). In instances such

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as this, where the state government would be required to bear the cost, the Court must

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exercise caution. See Jiminez, 2009 WL 653877, at *2. The facts of this case are no more

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extraordinary and the legal issues are no more complex than those found in the majority of

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§ 1983 prisoner civil rights cases before this Court, and because defendants have already

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retained a medical expert in this case, it would be unjust to require the government to bear

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the cost of an unnecessary court-appointed expert.

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For the reasons discussed above, plaintiff’s motion for appointment of a neutral

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expert and an expert witness (ECF No. 84) is denied.

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Dated: October 9, 2018

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Magistrate Judge Marc L. Goldman

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Plaintiff does not address in his motion whether he would be able to compensate

an expert for his fees and costs.
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15-cv-2446-MMA-AGS