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Rios v. Gipson

United States District Court, E.D. California

May 10, 2018

CONNIE GIPSON, et al., Defendants.



         I. Background

         Plaintiff 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.[1] (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, ][3]

         On 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).

         II. Deferred Consideration of Defendants' Motion for Summary Judgment

         Rule 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).

         Plaintiff's 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.

         A. Defendants' Expert Witness

         Under 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).

         1. Timeliness of Disclosure

         This 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.

         2. Qualifications of Dr. Feinberg

         The 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).

         Dr. 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. ...

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