Brown v. Ross County et al

Filing 30

ORDER denying 20 Plaintiff's Motion for the Court to Direct the United States Marshal to Serve Subpoenas. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/1/2014. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LELAND LEE BROWN,
Plaintiff,
Civil Action 2:14-cv-0333
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

ROSS COUNTY, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion for the Court to
Direct the United States Marshal to Serve Subpoenas (ECF No. 20), Defendants’ Responses in
Opposition to Plaintiff’s Motion (ECF Nos. 21, 24), and Plaintiff’s Reply (ECF No. 29).
Specifically, Plaintiff requests that the Court order the United States Marshals Service to serve a
subpoena duces tecum on Dr. William Strauch to render the following opinions:
(1) the comparative differences of Oxycodone and Methadone versus Tramodol as
pain relievers, and (2) known risks associated with withdrawing from high doses
of pain relievers, equivalent to 180 mg and 30 mg of Methadone daily, for a
person with a pre-existing condition of hypertension who is not being monitored
by a medical professional.
(ECF No. 29.) For the reasons that follow, Plaintiff’s Motion is DENIED. (ECF No. 20.)
As set forth in the Court’s August 28, 2014 Order (ECF No. 19), because Plaintiff is
proceeding in forma pauperis, “[t]he officers of the court shall issue and serve all process, and
perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies
shall be available as are provided for by law in other cases.” 28 U.S.C. § 1915(d). This
provision requires the Marshals Service to serve an indigent party’s subpoena duces tecum. A

court, however, may exercise its discretion to screen such a subpoena request, relieving the
Marshals Service of its duty when appropriate. See 9A C. Wright & A. Miller, Federal Practice
and Procedure § 2454, p. 244-46 n. 21 (3d ed. 2010) (citations omitted).
In the instant case, the Court finds circumstances warranting an exception to the Marshals
Service’s statutory duty under Section 1915(d). Federal Rule of Civil Procedure 45(d)(3)(B)(ii)
provides as follows:
To protect a person subject to or affected by a subpoena, the court for the district
where compliance is required may, on motion, quash or modify the subpoena if it
requires . . . disclosing an unretained expert’s opinion or information that does not
describe specific occurrences in dispute and results from the expert’s study that
was not requested by a party.
Fed. R. Civ. P. 45(d)(3)(B)(ii). The purpose of this rule is to protect unretained experts from
compulsion to provide expert opinions without compensation. See Fed. R. Civ. P. 45 advisory
committee’s note (1991) (“A growing problem has been the use of subpoenas to compel the
giving of evidence and information by unretained experts. . . . Arguably the compulsion to testify
can be regarded as a “taking” of intellectual property.”). Rule 45(d)(3)(B)(ii) allows unretained
experts to withhold their expertise until the party seeking information shows that he has
substantial need for the information and cannot, without undue hardship, obtain its substantial
equivalent by other means. Id.
In the instant case, Plaintiff asserts that Dr. Strauch was his treating physician and that he
has personal knowledge of the facts of this case. Plaintiff’s subpoena requests, however, are
wholly unrelated to Dr. Strauch’s first-hand knowledge of the facts of this case. (See ECF Nos.
20, 29.) Rather, Plaintiff seeks medical opinions that only an expert witness is capable of
providing. Notably, Plaintiff has not retained Dr. Strauch as an expert in this case. Thus, Dr.
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Strauch’s specialized knowledge regarding “the comparative differences of Oxycodone and
Methadone versus Tramadol” and the “known risks associated with withdrawing from high doses
of pain relievers” is protected under Rule 45(d)(3)(B)(ii). Further, Plaintiff has failed to
demonstrate that he has a substantial need for this information and that he cannot, without undue
hardship, obtain its substantial equivalent by other means. Accordingly, Plaintiff’s Motion to
Serve Subpoenas is DENIED.
IT IS SO ORDERED.

Date: October 1, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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