United States District Court, S.D. California
ORDER DENYING MOTION FOR APPOINTMENT OF MEDICAL
EXPERT [ECF NO. 141]
L. Burkhardt United States Magistrate Judge
the Court is Plaintiff's motion for appointment of a
medical expert or, alternatively, for a list of addresses of
medical experts. (ECF No. 141.) Plaintiff asserts in his
motion that he would like to retain an expert in this case
with specialized knowledge of the Gabapentin medication,
lower back injuries, and nerve damage, as these “are
[the] issues [his] case is about.” (Id. at 1.)
Plaintiff requests that the Court assign him an expert
because the prison law library does not contain information
on expert witnesses, and he does not have access to anyone
outside of prison who can help him retain an expert.
Court's request, Defendants filed a response in
opposition to Plaintiff's motion on May 26, 2017. (ECF
No. 143.) Plaintiff filed a reply to Defendants'
opposition on June 13, 2017. (ECF No. 148.) For the reasons
explained below, Plaintiff's motion to be appointed a
medical expert is DENIED.
Rule of Evidence 706 allows a district court to appoint an
expert on either its own motion or the motion of a party.
Fed.R.Evid. 706(a); McKinney v. Anderson, 924 F.2d
1500, 1510-11 (9th Cir. 1991), overruled on other grounds
by Helling v. McKinney, 502 U.S. 903 (1991). Appointment
of an expert witness is generally appropriate when
“scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
decide a fact in issue.” Torbert v. Gore,
14cv2911 BEN (NLS), 2016 WL 3460262, at *2 (S.D. Cal. June
23, 2016) (quoting Levi v. Dir. Of Corr.,
CIVS020910LKKKJMP, 2006 WL 845733, at *1 (E.D. Cal. Mar. 31,
2006)). Expert witnesses should not be appointed where they
are not necessary or significantly useful for the trier of
fact to comprehend a material issue in a case. Gorton v.
Todd, 793 F.Supp.2d 1171, 1181 (E.D. Cal. 2011).
Additionally, expert witnesses should not be appointed to
serve as an advocate for a party. Faletogo v. Moya,
12-cv-631-GPC-WMc, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12,
706 is not a means to avoid the in forma pauperis
statute, 28 U.S.C. § 1915, and its prohibition against
using public funds to pay the expenses of witnesses in a
§ 1983 prisoner civil rights action. Dixon v.
Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Thus, courts
should appoint an expert for an indigent inmate and apportion
all costs to an opponent only “when the expert would
significantly help the court” understand complex or
compelling issues. Bovarte v. Schwarzenegger,
08-cv-1661-LAB-NLS, 2011 WL 748597, at *20 (S.D. Cal. Sept.
21, 2011), Report and Recommendation adopted at 2012
WL 760620 (S.D. Cal. Mar. 7, 2012).
reviewing the parties' motion and opposition papers and
the operative complaint, the Court concludes that the issues
in this case are not so complex as to require the testimony
of expert witnesses to assist the trier of fact. Plaintiff
alleges Eighth and Fourteenth Amendment deliberate
indifference and equal protection claims in his Fourth
Amended Complaint. (ECF No. 126.) To prevail on his Eighth
Amendment deliberate indifference claim, Plaintiff must show
that Defendants acted with deliberate indifference to his
serious medical needs. See Estelle v. Gamble, 429
U.S. 97, 104 (1983). In the context of such a claim,
“the question of whether the prison officials displayed
deliberate indifference to [Plaintiff's] serious medical
needs [does] not demand that the jury consider probing,
complex questions concerning medical diagnosis and
judgment.” Torbert, 2016 WL 3460262, at *2
(quoting Levi, 2006 WL 845733, at *1). Rather, the
jury will need to consider the prison official's
subjective knowledge of any risks to Plaintiff's health.
See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2002). Courts have declined to appoint an expert under such
circumstances. Torbert, 2016 WL 3460262, at *2.
Further, the determination of whether Plaintiff's medical
needs were sufficiently “serious” to amount to an
Eighth Amendment violation will depend on Plaintiff's
subjective testimony regarding the extent of his injuries and
how his injuries impacted his daily life. See McGuckin v.
Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),
overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)
(“The existence of an injury that a reasonable doctor
or patient would find important and worthy of comment or
treatment; the presence of a medical condition that
significantly affects an individual's daily activities;
or the existence of chronic and substantial pain are examples
of indications that a prisoner has a ‘serious' need
for medical treatment.”) The assistance of an expert
witness would be unnecessary under these circumstances.
prevail on his Fourteenth Amendment equal protection claim,
Plaintiff must show that Defendants either acted with an
intent or purpose to discriminate against him based upon his
membership in a protected class, Barren v.
Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998), or
intentionally treated him differently from other similarly
situated individuals without a rational basis for the
difference in treatment, Engquist v. Oregon Dep't of
Agriculture, 553 U.S. 591, 601 (2008). Similar to
Plaintiff's Eighth Amendment claim, with respect to this
claim, a jury need not consider complex scientific,
technical, or other specialized questions of fact that would
require the appointment of an expert.
addition, Defendants have already appointed a medical expert.
(ECF No. 143 at 3.) This expert “can assist the jury
with any issues in this case not within the common
knowledge.” Jimenez v. Sambrano, 04cv1833 L
(PCL), 2009 WL 653877, at *2 (S.D. Cal.
12, 2009). Because this case is not complex, the opinion of
one unbiased medical expert is sufficient to assist the trier
of fact at trial. See Id. The testimony of a second
medical expert is unnecessary.
makes several arguments in his reply brief as to why he
should not be required to rely on Defendants' expert
witness; however, none are availing. First, Plaintiff argues
that he has “not received a complete discovery
statement of what [Defendants' expert] is going to be
testifying, and what documents will he be relying to support
his testimony.” (ECF No. 148 at 3.) Plaintiff argues
that it would be prejudicial to require him to rely on
Defendants' expert without knowing what he will testify
to and whether it contradicts Plaintiff's position.
(Id. at 3-4.) The Court notes that under the
operative Scheduling Order, Defendants are not required to
provide Plaintiff with their expert witness's report
until September 8, 2017. (See ECF No. 139, ¶
Plaintiff argues that the opinion of Defendants' expert
will be biased, as the expert is likely to exaggerate his
testimony, “omit all evidence and the truth of
medication that is damaging to the party that hire[d] him,
” and “rely on documents prepared by
Defendants” that “do not mention anything about
[Plaintiff's] 602's (grievances), or 7362 Forms
(medical requests) where [Plaintiff] specif[ies] every
element required to satisfy the cruel and unusual
punishment.” (ECF No. 148 at 4-5.) Plaintiff contends
that if he is appointed his own expert, the expert will be
able to explain to the jury the damages and injuries that
Plaintiff has suffered, Plaintiff's medical symptoms,
pain, and suffering, and Plaintiff's medical requests and
grievances. (Id. at 5.) Plaintiff fails to assert a
proper basis for the appointment of an expert witness. Here,
Plaintiff is asking the Court to appoint him an expert
witness not to help the trier of fact better understand a
complex issue in this case but instead to advocate on
Plaintiff's behalf. As noted above, Rule 706 does not
contemplate that expert witnesses be appointed to serve as an
advocate for a party. Faletogo, 2013 WL 524037, at
*2. To the extent that Plaintiff is concerned that
Defendants' expert witness will deliver biased testimony
at trial, Plaintiff will have the opportunity to present
evidence of bias on cross-examination.
because Plaintiff is proceeding in forma pauperis
(ECF No. 3), the Court assumes that Plaintiff is unable to
compensate an expert witness. As noted above, under the in
forma pauperis statute, 28 U.S.C. § 1915, the Court
is prohibited from using public funds to pay the expenses of
witnesses in a § 1983 prisoner civil rights action.
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).
Thus, if the Court were to appoint an expert on behalf of
Plaintiff, it would be required to apportion the cost of
Plaintiff's witness to Defendants. See Fed. R.
Evid. 706(b). In instances such as this, where the government
would be required to bear the cost, the Court must exercise
caution. Jimenez, 2009 WL 653877, at *2. Here, the
Court finds that because the facts of this case are no more
extraordinary and the legal issues are no more complex than
those found in the majority of the § 1983 prisoner civil
rights cases before this Court, and because Defendants have
already appointed a medical expert in this case, it would be
unjust to require the government to bear the cost of an
unnecessary additional medical expert witness.
the Court is unable to provide Plaintiff with a list of
addresses of the expert witnesses. The Court does not
maintain this type of information and, in any event, the
Court may not provide legal advice or assistance to any
reasons discussed above, Plaintiffs motion for appointment of