Barber v. Shinseki

Filing 82

MEMORANDUM RULING denying 73 Motion for Appointment of Expert Witness, reserving, however, the district judge's discretion to appoint one for the court if, in his discretion, it is indicated. Signed by Magistrate Judge James D Kirk on 10/25/12. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

BARBER

CIVIL ACTION NO. 10-0808

VERSUS

CHIEF DISTRICT JUDGE DEE D. DRELL

SHINSEKI

MAGISTRATE JUDGE JAMES D. KIRK

MEMORANDUM RULING
Before the court is plaintiff’s pro se motion for appointment of a medical expert, doc. #73.
This is a medical malpractice case against the Veteran’s Hospital in Alexandria. Plaintiff claims that
he suffered a torn colon during a colonoscopy procedure where polyps were removed by hot forceps,
required surgery, a colostomy, and reversal of the colostomy.
I initially denied the motion as premature, but vacated that order. The motion was discussed
in the telephone conference with the court on October 4, 2012. At that time I requested that
defendant provide the court with a copy of its expert report and the pertinent medical records. The
government obliged and I have reviewed the report and records.
Plaintiff is proceeding pro se and as an indigent. Appointment of an expert for an indigent
litigant is discretionary. Here, the appointment is not necessary and would add nothing to the medical
evidence already produced and which will be introduced at the trial. See Hulsey v. Thaler, 421 Fed.
Appx. 386 (5th C. 2011) (unpublished), and cases cited therein. Plaintiff will not be prejudiced by
the failure to appoint an expert. The facts of this case are simple and the record reflects that a
perforated colon is a known complication of a colonoscopy procedure and is one which plaintiff was

informed of prior to the procedure and which plaintiff consented to. The Government’s expert report
by Dr. Phillip Cole, a specialist with which this court is familiar, is to the same effect. Additional
expert testimony is not needed on the reason for the torn colon, the fact that it is a known risk of the
procedure, or that plaintiff consented to the procedure with knowledge and acceptance of the risk.1
Neither may an expert be appointed under 28 U.S.C. §1915. Pedraza v. Jones, 71 F.3d 194
(5th C. 1995), Hannah v. U.S., 523 F.3d 597 (5th C. 2008).
Although the discussion above shows that an expert should not be appointed, the district
judge always retains the authority to appoint one under FRE 706 where such would assist the court
in understanding the evidence.
Therefore, for the foregoing reasons, the motion for appointment of an expert witness is
DENIED, reserving, however, the district judge’s discretion to appoint one for the court if, in his
discretion, it is indicated.
THUS DONE AND SIGNED in chambers, in Alexandria, Louisiana, on this 25th day of ,
2012.

1

As concerns the court’s having reviewed the expert report and pertinent medical records,
see Patel v. U. S., 399 Fed. Appx. 355 (10th C. 2010).
2