United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed this civil
rights action seeking relief under 42 U.S.C. § 1983
alleging deliberate indifference to his serious medical needs
in violation of the Eighth Amendment. The matter was referred
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302. Before the court is
plaintiff's motion for the appointment of an expert
witness pursuant to Federal Rule of Civil Procedure 706(a) to
testify concerning the effect of neuropathy from diabetes on
his body. (ECF No. 38.) For the reasons outlined below, the
motion is denied.
expert witness may testify to help the trier of fact
determine the evidence or a fact at issue. Fed.R.Evid. 702.
Federal courts have discretion to appoint expert witnesses,
and parties may name witnesses to appoint. Fed.R.Evid.
706(a), (d); Walker v. American Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).
Although there is no definite rule to guide discretion,
“[a]ppointment [of expert witnesses] may be appropriate
when ‘scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or decide a fact in issue[.]'” Levi v.
Director of Corrections, No. CIVS020910LKKKJMP, 2006 WL
845733 (E.D.Cal. Mar. 31, 2006) (citing Ledford v.
Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997)).
plaintiff is proceeding in forma pauperis, the court is not
required to pay for an appointed, non-neutral expert. The in
forma pauperis statute, 28 U.S.C. § 1915, does not waive
the requirement of the payment of fees or expenses for
witnesses in a § 1983 prisoner civil rights action.
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).
Moreover, “[r]easonably construed, [Rule 706] does not
contemplate the appointment of, and compensation for, an
expert to aid one of the parties.” Walker v.
Woodford, 2008 WL 793413 (S.D.Cal., Mar. 24, 2008)
(citation omitted). Federal Rule of Evidence 706(a) only
allows a court to appoint a neutral expert. See In re
High Fructose Corn Syrup Antitrust Litigation, 295 F.3d
651, 665 (7th Cir. 2002).
at issue in this case is whether the defendants acted with
deliberate indifference to plaintiff's serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 104 (1983).
Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner. In order
to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs. It is only such
indifference that can offend “evolving standards of
decency” in violation of the Eighth Amendment.
Id. at 106. Accordingly, a court must consider the
seriousness of the prisoner's medical need and the nature
of the defendant's response to that need. McGuckin v.
Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled in
part on other grounds, WMX Technologies, Inc. v.
Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Deliberate
indifference thus has a subjective component.
Ledford v. Sullivan, the Seventh Circuit found that
in light of the subjective element of deliberate
indifference, there was no error in the court's refusal
to appoint an independent expert. 105 F.3d 354, 358-59 (7th
Because the test for deliberate indifference is more closely
akin to criminal law than to tort law, the question of
whether the prison officials displayed deliberate
indifference to Ledford's serious medical needs did not
demand that the jury consider probing, complex questions
concerning medical diagnosis and judgment. The test for
deliberate indifference is not as involved as that for
medical malpractice, an objective inquiry that delves into
reasonable standards of medical care.
Ledford, 105 F.3d at 359.
asserts an expert is necessary to provide testimony about the
effect of neuropathy from diabetes on all parts of the body
to determine whether defendants' alleged deliberate
indifference resulted in plaintiffs injury. (ECF No. 38 at
2.) Plaintiffs proposed line of inquiry is more akin to a
malpractice claim than to one of deliberate indifference. In
this action for deliberate indifference to serious medical
needs, it is unnecessary for “the jury [to] consider
probing, complex questions concerning medical diagnosis and
judgment.” Ledford, 105 F.3d at 359; see
also Levi, 2006 WL 845733, *1 (appointment of medical
expert is not necessary in a deliberate indifference action
where the plaintiffs proposed line of questioning for the
expert is more germane to a malpractice claim); Torbert
v. Gore, No.: 14cv2911 BEN (NLS), 2016 WL 3460262, *2
(S.D. Cal. June 23, 2016) (denying motion to appoint medical
expert in a deliberate indifference action because such an
action does not require the fact finder to address complex
questions concerning medical diagnosis and judgment).
Accordingly, the undersigned declines to appoint an expert.
HEREBY ORDERED that plaintiffs motion for appointment of an
expert witness (ECF ...