United States District Court, E.D. California
JAMES W. MILLNER, Plaintiff,
DR. DILEO, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO MODIFY
SCHEDULING ORDER AS TO DISPOSITIVE MOTION DEADLINE, AND
DENYING PLAINTIFF'S REQUEST FOR AN IMPARTIAL MEDICAL
EXPERT WITNESS (ECF NOS. 60, 61)
James W. Millner is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. This action is proceeding against Defendants
DiLeo, Ulit, and Spaeth, in their individual capacity, for
deliberate indifference to serious medical needs in violation
of the Eighth Amendment, based on Plaintiff's wrist
before the Court is Defendants' motion requesting an
extension of time to file a motion for summary judgment,
filed on August 27, 2019, which the Court interprets as a
motion to modify the scheduling order as to the dispositive
motion deadline. (ECF No. 60.) On September 5, 2019,
Plaintiff filed an opposition to Defendants' motion. (ECF
No. 61.) The Court finds a reply is unnecessary and the
motion is deemed submitted. Local Rule 230(1).
Defendants' Motion to Modify the Scheduling
to Rule 16(b), a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). The “good cause” standard
“primarily considers the diligence of the party seeking
the amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may
modify the scheduling order “if it cannot reasonably be
met despite the diligence of the party seeking the
extension.” Id. If the party was not diligent,
the inquiry should end. Id.
argue that good cause exists to modify the dispositive motion
deadline because Defendants' counsel, who has only
represented the Defendants since late June 2019, has
concluded that further investigation of this case needs to be
conducted before any motion for summary judgment is filed.
(ECF No. 60-1, Declaration of Virginia I. Papan, ¶¶
3-4.) Specifically, after taking Plaintiff's deposition
on July 15, 2019 and reviewing the deposition transcript and
related medical records, Defendants' counsel concluded
that she needs to retain a specialist to review
Plaintiff's relevant medical records and prepare an
expert report regarding each Defendant's treatment and
care of Plaintiff's injured left wrist. (Id.)
opposes the Defendants' motion to modify the dispositive
motion deadline. Plaintiff argues that, if the Court grants
Defendants' motion, the additional time will permit
Defendants to obtain a biased medical evaluation in their
favor that they can then use as evidence to support their
summary judgment motion. (ECF No. 61, at 2.) However, while
Defendants are requesting additional time to obtain an expert
report to fully evaluate each Defendant's treatment of
Plaintiff, there is no evidence that the medical evaluation
will be in the Defendants' favor or that the Defendants
will use the medical evaluation as evidence in support of any
motion for summary judgment that they file.
having considered Defendants' request, the Court finds
good cause to modify the dispositive motion deadline.
Consequently, Defendants' motion to modify scheduling
order is granted.
Plaintiff's Request for Appointment of an Impartial
Medical Expert Witness
opposition, Plaintiff requests that, if the Court grants
Defendants' motion to modify the scheduling order, the
Court also appoint a non-biased medical expert witness to
evaluate Defendants' care and treatment of Plaintiff so
that there is a balanced evaluation that can be used as
evidence in this case.
Rule of Evidence 702 provides, in relevant part, that
“[a] witness who is qualified as an expert by
knowledge, skill, experience, training or education may
testify in the form of an opinion” if “the
expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue[.]”
Fed.R.Evid. 702(a). Under Federal Rule of Evidence 706, a
Court has discretion to appoint an expert witness on its own
motion or pursuant to the motion of any party to the action.
Fed.R.Evid. 706(a). “A Rule 706 expert typically acts
as an advisor to the court on complex scientific, medical, or
technical matters.” Armstrong v. Brown, 768
F.3d 975, 987 (9th Cir. 2014). Rule 706 “only allows a
court to appoint a neutral expert.” Gorton v.
Todd, 793 F.Supp.2d 1171, 1177 (citation omitted). In
other words, a party may not seek appointment of an expert
witness under Rule 706 “for his own benefit[.]”
Id. at 1177 n.6.
decision of whether to appoint an expert witness under Rule
706 is discretionary.” Id. at 1178.
“Expert witnesses should not be appointed under Rule
706 where not necessary or significantly useful for the trier
of fact to comprehend a material issue in a case.”
Id. at 1181. “Expert witnesses are rarely
appointed under Rule 706 because the adversary system is
usually sufficient to promote accurate factfinding.”
Id. at 1182.
reviewing Plaintiff's request for appointment of an
impartial medical expert witness, the Court concludes that
the issues in this case are not so complex as to require the
opinion of a court-appointed expert on medical care to assist
the trier of fact. Initially, Plaintiff himself states that
the medical records dating from 2013 to 2019 are not complex.
Further, to prevail on his deliberate indifference claim,
Plaintiff must show that defendants acted with deliberate
indifference to his serious medical needs. In the context of
such a claim, “the question of whether the prison
[doctors] displayed deliberate indifference towards
[Plaintiff's] serious medical needs d[oes] not demand
that the [trier of fact] consider probing, complex questions
concerning medical diagnosis and judgment.” Ledford
v. Sullivan, 105 F.3d 354, 359 (7th Cir. 1997). Rather,
the trier of fact will need to consider the prison
officials' subjective knowledge of any risks to
Plaintiff's health. See Toguchi v. Chung, 391
F.3d 1051, 1057 (9th Cir. 2002). Further, “whether a
prison [doctor] acted with deliberate indifference depends on
that [doctor's] state of mind[, ]” so an expert
would not be able to give an opinion or testify that a prison
[doctor] was “deliberately indifferent” without
giving “a false impression” that the expert knows
the answer, when it is the trier of fact that must decide the
issue of whether the prison doctor was deliberately
indifferent. Woods v. Lecureux, 110 F.3d ...