United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION TO STRIKE AND
POSTPONE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC.
95) TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
is a prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. Upon screening, the action was dismissed
for failure to state a claim and judgment was entered on
April 9, 2014. (Docs. 14, 15.) Following Plaintiff's
appeal, the Ninth Circuit affirmed in part, reversed in part,
and remanded the action. (Docs. 21, 23.) Plaintiff proceeds in
this action on his remaining claims under the Eighth
Amendment for deliberate indifference to his serious medical
needs regarding his asthma and nerve pain.[2, ]
February 2, 2018, Defendants filed a motion for summary
judgment. (Doc. 88.) After receiving an extension of time to
file an opposition or statement of non-opposition, Plaintiff
filed a motion to strike and postpone ruling on
Defendants' motion. (Doc. 95.) Defendants filed their
opposition and Plaintiff filed a reply. (Docs. 97, 100.)
Plaintiff's motion is deemed submitted. L.R. 230(1).
Deferred Consideration of Defendants' Motion for
56(d) provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.”
Fed.R.Civ.P. 56(d). In seeking relief under Rule 56(d),
Plaintiff bears the burden of submitting: (1) a declaration
setting forth the specific facts Plaintiff hopes to elicit
from further discovery, (2) a showing that the facts exist,
and (3) a showing that the facts are essential to opposing
the motion for summary judgment. Blough v. Holland
Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009);
Getz v. Boeing Co., 654 F.3d 852, 867-68 (9th Cir.
2011); Tatum v. City and County of San Francisco,
441 F.3d 1090, 1100-01 (9th Cir. 2006).
sole argument is that Defendants' motion for summary
judgment is supported by a declaration of their expert
witness, Dr. B. Feinberg, who Plaintiff would like to depose.
(Doc. 95.) Plaintiff contends he had no reason to believe
Defendants intended to rely on Dr. Feinberg's opinions
until he received a copy of their motion for summary
judgment. Plaintiff would like to depose Dr. Feinberg by
written question because he believes Dr. Feinberg's
opinions are contradicted by Plaintiff's medical records.
Plaintiff also contends that Dr. Feinberg's opinions
should be disregarded because Dr. Feinberg has never
interviewed or examined Plaintiff and Dr. Feinberg was not
designated as an expert witness for trial.
Defendants' Expert Witness
the Federal Rules, “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the
form of an opinion or otherwise.” Fed.R.Evid. 702.
Testimony must be “based upon sufficient facts or
data” and be “the product of reliable principles
and methods.” Fed.R.Evid. 702. The expert witness must
also have “applied the principles and methods reliably
to the facts of the case.” Id. A party must
disclose the identity of any expert witnesses expected to
testify at trial. Fed.R.Civ.P. 26(a)(2) (A).
Timeliness of Disclosure
Court neither requires Rule 26 disclosures, nor is there a
deadline generally set for disclosure of expert witnesses in
civil rights actions brought by inmates proceeding pro
se. Thus, through no fault of either party,
Defendants' motion for summary judgment would logically
be the first notice Plaintiff had that Defendants intended to
rely on Dr. Feinberg as an expert witness in this action. No
deadline has been set for Defendants to designate Dr.
Feinberg as an expert witness in this action. Thus,
Defendants may rely on Dr. Feinberg's declaration in
support of their motion for summary judgment.
Qualifications of Dr. Feinberg
Supreme Court has imposed a “gatekeeping
responsibility” in which courts are to engage to ensure
that purportedly “expert” evidence “is not
only relevant, but reliable.” Daubert v. Merrell
Dow Pharms., 509 U.S. 579, 589 (1993); Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141-42 (1999)
(clarifying the court's “gatekeeping”
obligation “applies not only to testimony based on
‘scientific knowledge, ' but also to testimony
based on ‘technical' and ‘other
specialized' knowledge”). Prior to considering
proffered expert testimony, a trial court “must merely
make a determination as to the proposed expert's
qualifications.” Hopkins v. Dow Corning Corp.,
33 F.3d 1116, 1124 (9th Cir.1994). A court is not to attempt
to determine whether an expert's conclusions are correct,
but rather examine only “the soundness of his
methodology.” Daubert v. Merrell Dow Pharm.,
Inc., 43 F.3d 1311, 1318 (9th Cir.1995).
Feinberg's declaration and curriculum vitae indicate that
he received a Doctorate of Medicine degree from the
University of California San Francisco School of Medicine in
1994. (Doc. 88-5.) In 1997, Dr. Feinberg completed an
internship and residency in Internal Medicine at the Baylor
College of Medicine in Houston, Texas. Dr. Feinberg is
currently licensed to practice medicine in the State of
California, and is a specialist in Internal Medicine,
certified by the American Board of Internal Medicine. Thus,
it appears Dr. ...