Burgess v. Cavanaugh et al

Filing 34

MEMORANDUM re pltf's MOTION to Appoint Expert 27 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/7/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY JAMES BURGESS,
Plaintiff
v.
DR. WILLIAM CAVANAUGH, et al.,
Defendants

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CIVIL NO. 1:CV-16-1208
(Judge Caldwell)

MEMORANDUM

I.

Introduction
Gregory Burgess, a federal inmate formerly housed at the Allenwood United

States Penitentiary in Allenwood, Pennsylvania, filed a pro se Complaint under the Federal
Tort Claims Act, 28 U.S.C. § 2671, et seq., and a Bivens1 action against the United States
and medical professionals involved in his dental treatment. Presently before the Court is
Burgess’ motion for a court-appointed medical expert so he is in compliance with Pa. R.
Civ. P. 1042.3. (ECF No. 27). Defendants oppose the motion. (ECF No. 29).
For the following reasons, the motion will be denied.

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See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

II.

Statement of Facts
Plaintiff alleges the following. Burgess arrived at USP-Allenwood on April 16, 2015.

(ECF No. 1, Compl.) He was seen by Drs. Cavanaugh and Foley, dentists, concerning
ongoing excruciating dental pain. (Id., p. 5). Both dentists extracted teeth, provided
antibiotics and some pain medication. Yet Burgess continued to suffer extreme dental pain
caused by an unresolved tooth abscess. Burgess claims institutional physicians, Dobushak
and Buschman, were also negligent in failing to ensure Plaintiff received prompt and proper
dental care. The Defendants’ failure to properly manage his emergency dental condition
and discomfort resulted in Burgess’ suffering excruciating pain for more than sixty days.
(Id., p. 7).

III.

Discussion
Burgess seeks a court-appointed medical expert “to identify whether the

procedure the Defendants performed constituted negligence (e.g. evaluating Defendants
decision to administer a nerve blocking injection in a particular location).” (ECF No. 28).
Although Burgess proceeds in forma pauperis, there is no authority to appoint and pay an
expert to assist an indigent litigant in the preparation of a civil suit for damages. See
Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (citing Boring v. Kozakiewicz, 833 F.2d
468, 474 (3d Cir. 1987)) (finding no authority for court to pay for indigent plaintiff’s expert
witnesses). Additionally, in a civil action such as this, Fed. R. Evid. 706, provides Burgess
little relief as it grants a district court discretion to appoint an independent expert for the

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purpose of aiding the Court, not an individual party. Further, like other costs, the parties
are taxed the cost of the expert, as determined by the court. See Fed. R. Evid. 706; Ford v.
Mercer Cty. Corr. Ctr., 171 F. App’x 416 420 (3d Cir. 2006); Kerwin v. Varner, 2006 WL
3742738, *2 (M.D. Pa. Dec. 15, 2006). Accordingly, Plaintiff’s motion will be denied.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: September 7, 2017

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