Carson v. Martinez et al

Filing 54

ORDER denying 47 Plaintiff's Motion for the appointment of an independent medical expert. Signed by Magistrate Judge Barbara Lynn Major on 9/06/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv1736-JLS (BLM)

DAVID VINCENT CARSON,

ORDER DENYING PLAINTIFF'S
MOTION FOR THE APPOINTMENT OF
AN INDEPENDENT MEDICAL EXPERT

Plaintiff,

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v.

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F. MARTINEZ, et al.,

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[ECF No. 47]

Defendants.

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Currently before the Court are Plaintiff’s “Motion for the Appointment of an Independent

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Medical Expert” [ECF No. 47 (“Mot.”)], Defendants’ opposition [ECF No. 51 (“Oppo.”)], and

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Plaintiff’s reply to Defendant’s opposition [ECF No. 53 (“Reply”)]. Having considered all of the

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briefing and supporting documents, and for the reasons set forth below, the Court DENIES

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Plaintiff’s motion for appointment of an independent medical expert.

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RELEVANT BACKGROUND

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On November 2, 2017, Plaintiff, a state prisoner proceeding pro se and in forma pauperis,

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filed a First Amended Complaint under 42 U.S.C. § 1983 against five correctional officers and

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one medical provider alleging violations of his constitutional rights. ECF No. 35 (“FAC”). Plaintiff

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claims that Dr. G. Casian, his primary care physician at Richard J. Donovan Correctional Facility,

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was deliberately indifferent to Plaintiff’s serious medical needs in violation of the Eighth

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Amendment. FAC at 3, 8-12, 14-15. Plaintiff alleges that after he was assaulted in February
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2014, he requested medical care for extreme pain in his neck and left arm “with numbness,

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tingling, lightheadedness, headaches, dizziness, and decreased mobility affecting his daily life’s

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activities.”

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reasonable medical treatment,” including, inter alia, the termination of his previously granted

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permanent medical accommodation “chronos,” caused him unnecessary pain and suffering.1 Id.

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at 8-9, 14-15.

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Id. at 5-8.

Plaintiff claims Defendant Casian’s “refusal and delay to provide

DISCUSSION

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Plaintiff asks the Court to appoint an independent medical expert of internal medicine

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with special knowledge in neurology and vascular diseases under Federal Rule of Evidence 706.

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Mot. at 1. In support, Plaintiff states that the appointment would assist the Court and jury “in

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understanding the complex issues of spinal cord damage resulting in radicular [neuropathy],

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fibromyalgi[a], atrophy, and Toracic Outlet Syndrome, their symptomology, causes, and

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treatments.” Id. Plaintiff further states that an independent medical expert would examine

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Plaintiff and his medical records and submit an unbiased report of his opinions, findings, and

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determinations about the reasonableness of Plaintiff’s medical care. Id. at 2, 4, 10-12. Plaintiff

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explains that all of the medical doctors he will be “forced to rely on” are employees of, or under

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contract with, the California Department of Corrections and Rehabilitations (“CDCR”) and

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therefore may be biased or unwilling to cooperate with him.2 Id. at 4. Additionally, Plaintiff

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declares that he is indigent and cannot afford to pay for a medical expert. Id. at 3.

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Defendants oppose Plaintiff’s motion arguing that (1) pursuant to 28 U.S.C. § 1915, the

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Court is not permitted to appoint an expert witness to aid an indigent litigant; (2) Plaintiff filed

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this motion after the deadline to designate experts had passed on March 2, 2018; and (3) there

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is no need for the appointment of an independent medical expert to assist the Court with a

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Plaintiff states that he had been prescribed permanent medical accommodation chronos “for
pre-existing cervical damage and problems” consisting of lower bunk use since 2009 and a lifting
restriction of twenty pounds since 2011. Mot. at 6-7.
2 Defendants acknowledge that Plaintiff correctly noted that the defense has not designated a
retained medical expert. Oppo. at 3. They state that the doctors who actually examined and
treated Plaintiff will address the issues related to his injuries and treatment. Id.
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straightforward Eighth Amendment claim. Oppo. at 1-3. Defendants also state that Plaintiff has

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access to medical testimony from doctors who treated him outside of the prison because he may

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subpoena them. Id. at 3.

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In his Reply, Plaintiff argues that the deadline for parties to designate experts does not

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pertain to an independent expert appointed by the Court. Reply at 3. He also argues that the

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doctors outside the prison would only be able to testify as to limited matters pertaining to Plaintiff

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and that he cannot afford to secure their testimony because he is indigent and proceeding in

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forma pauperis. Id. at 3-4.

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Rule 706 of the Federal Rules of Evidence authorizes the Court to appoint an independent

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expert. Such an appointment is within the discretion of the trial judge and may be appropriate

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when “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.” See Torbert v. Gore, No. 14cv2911-BEN

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(NLS), 2016 WL 3460262, at *2 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong

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v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A Rule 706 expert typically acts as an advisor to

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the court on complex scientific, medical, or technical matters.”). An expert appointed pursuant

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to Rule 706 does not serve as an advocate for either party, and each party retains the ability to

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call its own experts. Fed. R. Evid. 706(e); Faletogo v. Moya, No. 12cv631-GPC (WMc), 2013 WL

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524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 “does not contemplate court appointment

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and compensation of an expert witness as an advocate for one of the parties.”). “The in forma

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pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or authorize

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payment for expert witnesses for prisoners or other indigent litigants.” Stakey v. Stander, No.

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1:09-CV-00094-BLW, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 2011); see also Dixon v.

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Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (“The magistrate judge correctly ruled that 28 U.S.C. §

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1915, the in forma pauperis statute, does not waive payment of fees or expenses for

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witnesses.”). “Ordinarily, the plaintiff must bear the costs of his litigation, including expert

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expenses, even in pro se cases.” Stakey, 2011 WL 887573, at *3 n.1.

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In order to prevail on his Eighth Amendment claim, Plaintiff must show that Defendant

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Casian acted with deliberate indifference to his serious medical needs. See Estelle v. Gamble,
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429 U.S. 97, 104-06 (1976). Such a claim has two elements: “the seriousness of the prisoner’s

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medical need and the nature of the defendant’s response to that need.” McGuckin v. Smith,

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974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,

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104 F.3d 1133 (9th Cir. 1997). After reviewing the parties’ briefing papers and the operative

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complaint, the Court finds that the issues in this case are not so complex that an expert witness

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is required to aid the fact finder.

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First, the determination of whether there is a serious medical need depends on Plaintiff’s

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testimony or records indicating the extent of his injuries and how his injuries impacted his daily

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life. See id. at 1059-60 (“The existence of an injury that a reasonable doctor or patient would

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find important and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the existence of chronic and substantial

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pain are examples of indications that a prisoner has a ‘serious’ need for medical treatment.”).

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This is not a complex inquiry and does not require expert testimony on the “symptomology,

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causes, and treatments” of Plaintiff’s medical problems.

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Second, under the deliberate indifference element, “a person is liable for denying a

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prisoner needed medical care only if the person ‘knows of and disregards an excessive risk to

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inmate health and safety.’” Gibson v. Cty of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir.

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2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Because this inquiry focuses on

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the subjective state of mind of the medical provider, the Court finds that the assistance of an

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independent expert is unnecessary. See Torbert v. Gore, No. 14cv2911-BEN (NLS), 2016 WL

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3460262, at *2 (S.D. Cal. June 23, 2016) (“[T]he question of whether the prison officials

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displayed deliberate indifference to [Plaintiff's] serious medical needs [does] not demand that

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the jury consider probing, complex questions concerning medical diagnosis and judgment.”

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(citation omitted)); Stakey, 2011 WL 887573, at *3 (“While expert witnesses can help determine

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underlying scientific or complex medical issues when needed, they cannot help in the area of

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deliberate indifference, a required element of an Eighth Amendment claim.”).

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Third, the fact that Plaintiff’s medical providers are CDCR employees or contractors and

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may be biased against Plaintiff does not justify the appointment of an independent expert. See
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Arellano v. Hodge, No. 14cv590-JLS (JLB), 2017 WL 2692875, at *2 (S.D. Cal. June 22, 2017)

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(finding plaintiff’s concern that defendant’s expert will present biased testimony at trial is not a

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valid reason for the court to appoint an independent expert under Rule 706 because “[p]laintiff

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will have the opportunity to present evidence of bias on cross-examination”). Plaintiff may retain

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an expert or cross-examine the CDCR employees or contractors on that potential bias, but 28

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U.S.C. § 1915 does not authorize payment for such an expert hired by Plaintiff, and the potential

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bias does not warrant appointment of an independent expert.

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CONCLUSION

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For the reasons set forth above, the Court finds that an independent court-appointed

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medical expert is not appropriate for this case and DENIES Plaintiff’s motion for such an

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appointment.

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IT IS SO ORDERED.

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Dated: 9/6/2018

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16cv1736-JLS (BLM)