Carbajal v. St. Anthony Central Hospital et al

Filing 220

ORDER denying 196 Motion for Appointment [of] Expert Pursuant to the Court's Order [Doc. # 145 ]. By Magistrate Judge Kristen L. Mix on 7/11/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02257-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
ST. ANTHONY CENTRAL HOSPITAL, a corporation,
CENTURA HEALTH, a corporation,
STEPHAN M. SWAN, Physician Assistant, in his official and individual capacities,
GREGORY J. ENGLUND, Registered Nurse, in his official and individual capacities,
MARCI L. HANSUE, Registered Nurse, in her official and individual capacities,
MICHAEL O’NEILL, Police Officer for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Police Officer for the Denver Police Department, in his official and individual
capacities,
LARRY BLACK, Police Officer for the Denver Police Department, in his official and
individual capacities, and
APEX, a corporation,
Defendants.
_____________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Appointment [of] Expert
Pursuant to the Court’s Order [Doc. #145] [#196] (the “Motion”). Defendants filed a
Response [#203] in opposition to the Motion. Plaintiff did not file a Reply.
Plaintiff is proceeding pro se. He requests the Court to appoint and pay for two
urologists as expert witnesses in this matter. Pursuant to Federal Rule of Evidence 706,
a District Court “may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses should not be appointed, and may request the parties to
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submit nominations. The court may appoint any expert witnesses agreed upon by the
parties, and may appoint expert witnesses of its own selection.” However, Rule 706
provides no explicit instruction as to when an expert should be appointed by the Court.
“While Rule 706 provides no standard for determining when to appoint an expert, the policy
[of promoting accurate factfinding] underlying the provision supplies some guidance.” 29
Federal Practice and Procedure, Wright & Gold, § 6304, at 465 (1997). Courts have
hesitated to find any affirmative obligation to exercise their Rule 706 power. See, e.g.,
Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996); Okla. Natural Gas Co. v. Mahan &
Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 1986). In the absence of “complex scientific
evidence or complex issues,” the circuit courts have held that a district court does not
abuse its discretion in declining to appoint an expert pursuant to Rule 706. McKinney v.
Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991); see also Cestnik v. Fed. Bureau of
Prisons, 84 F. App’x 51, 53 (10th Cir. Dec.18, 2003) (“Given the relative lack of complexity
of [the] case and [Plaintiff's] failure to submit any evidence that he was financially unable
to retain his own physician, we cannot say that the refusal to appoint an expert constituted
abuse of discretion.”).
Further, as relevant here, reasonable compensation for an appointed expert is
payable “by the parties in the proportion and at the time the court directs—and the
compensation is then charged like other costs.” Fed. R. Evid. 706(c). Courts have held
that, under Rule 706(c), a District Court can apportion costs of an expert witness, and that
this authority extends to excusing indigent parties from paying their share of the costs.
See, e.g., Ledford v. Sullivan, 105 F.3d 354, 360-61 (7th Cir. 1997). Plaintiff proceeds in
forma pauperis in this matter. Importantly, the Court has no existing funds to pay for the
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appointment of an expert witness in a civil case. See Patel v. United States, 399 F. App’x
355, 359 (10th Cir. 2010) (citing 28 U.S.C. § 1915(c) for the proposition that “the in forma
pauperis statute makes no provision for litigation expenses other than the reproduction of
the record and transcripts”). As the Tenth Circuit Court of Appeals has stated in another
lawsuit initiated by a pro se prisoner claiming, in part, medical negligence:
The plaintiffs' dilemma in being unable to proceed in this damage suit
because of the inability to pay for expert witnesses does not differ from that
of nonprisoner claimants who face similar problems. Nonprisoners often
resolve that difficulty through contingent fee retainers with provisions for
arranging expert testimony. By seeking government funding in this case,
plaintiffs are in effect asking for better treatment than their fellow-citizens who
have not been incarcerated but who have at least equal claims for damages.
Id. (quoting Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987)). Thus, neither
Plaintiff nor the Court has the ability to pay for an expert witness. As a result, if the Court
were to appoint Plaintiff’s requested expert witnesses, Defendants would be forced to pay
the cost of doing so. However, the Court has the discretion to order one party to pay for
expert testimony requested by the opposing party only if that expert’s testimony would
substantially aid the Court. See Ledford, 105 F.3d at 361. However, the Court finds that
the issues in this case are not overly complex or scientific. See Recommendation [#114]
at 5-8 (summarizing the allegations in the Amended Complaint [#60]). It appears that both
the Court and a jury would be able to understand the issues presented by Plaintiff's case
without the assistance of a court-appointed expert.
Plaintiff also seeks appointment of counsel because at least one of his proposed
experts is “not willing to work with pro se litigants and is requesting to work with an
attorney.” Motion [#196] at 8. The Court does not have the power to appoint an attorney
without his or her consent, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296,
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310 (1989), nor does the Court have funds available to pay an attorney who agrees to
represent an indigent litigant in a civil case. Nevertheless, the Court can seek volunteer
counsel to represent a plaintiff if the Court determines in its discretion that it is appropriate
to do so. The Clerk of the Court maintains a list of pro se cases for which the Court is
seeking volunteer counsel. Placement on this list does not mean that a plaintiff will
automatically receive counsel. Rather, placement on the list results in representation being
secured for the plaintiff only if an attorney volunteers to represent him. Because of the
number of cases on the list and the shortage of volunteer attorneys, placement on the list
frequently does not result in counsel being obtained. In such circumstances, despite
placement of his case on the list, a pro se plaintiff remains responsible for litigating his case
himself.
In accordance with part III.C. of the United States District Court’s Pilot Program to
Implement a Civil Pro Bono Panel, the Court will only seek volunteer counsel for a pro se
plaintiff if consideration of the following factors so warrants: (1) the nature and complexity
of the action; (2) the potential merit of the pro se party’s claims; (3) the demonstrated
inability of the pro se party to retain counsel by other means; and (4) the degree to which
the interests of justice will be served by appointment of counsel, including the benefit the
Court may derive from the assistance of the appointed counsel. See also Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991)) (identifying the following factors for consideration by the Court in
determining whether volunteer counsel should be appointed: (1) the merits of the plaintiff’s
claims; (2) the nature of the factual issues raised in the claims; (3) the plaintiff’s ability to
present his claims himself; and (4) the complexity of the legal issues raised). As part of the
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fourth factor, the Court also considers whether there exist any special circumstances such
as those in McCarthy v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985), where the pro se
plaintiff was confined to a wheelchair, had poor eyesight, suffered from a speech
impediment and memory lapses, and had general difficulty in communications. See Rucks,
57 F.3d at 979.
In this case, Plaintiff has demonstrated his ability to frame facts and state claims for
relief. See Am. Compl. [#60]. As noted above, the legal issues presented are not overly
complex, novel, or particularly difficult to state or analyze. See id. The fact that Plaintiff’s
financial situation and incarcerated status have made it difficult for him to obtain
representation does not, by itself, warrant the need for volunteer counsel. Although mindful
of the difficulties faced by pro se parties, courts and legislating bodies have made a
distinction between civil and criminal cases regarding the necessity of counsel. See, e.g.,
Mallard, 490 U.S. at 301 (1989) (“Congress did not intend § 1915[(e] to license compulsory
appointments of counsel . . . .”); Custard v. Turner, No. 06-cv-01036-WYD-CBS, 2008 WL
4838564, at *1 (D. Colo. Nov. 6, 2008) (noting that the court is without statutory authority
to commit federal funds to “require counsel to represent” an indigent civil litigant). Although
there are extraordinary circumstances where fundamental due process concerns may
demand that a plaintiff be provided with counsel, this Plaintiff’s particular circumstances do
not. Plaintiff chose to bring this civil action voluntarily knowing the limitations he would face
due to his financial means, lack of legal training, and incarcerated status. To the extent
that Plaintiff feels that he cannot bear the responsibility at this time, he may voluntarily
dismiss his case without prejudice pursuant to Fed. R. Civ. P. 41(a). However, while the
case is pending, it remains Plaintiff’s legal obligation to comply with the Federal Rules of
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Civil Procedure, the Local Rules in this District, and all orders of this Court. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
IT IS HEREBY ORDERED that the Motion [#196] is DENIED.

Dated: July 11, 2014

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