Opinion
99 Civ. 5869 (WHP) (THK).
July 30, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pro se, brings this prisoner's civil rights action pursuant to 42 U.S.C. § 1983, raising numerous claims of deprivation of medical care by medical personnel at Green Haven Correctional Facility ("GHCF") and the Westchester County Medical Center. Construed liberally, the Amended Complaint alleges violations of plaintiff's Eighth Amendment rights because of deliberate indifference to his serious medical needs, medical malpractice, as well as violations of a consent decree governing the provision of medical care at GHFC, entered in Milburn v. Coughlin, 79 Civ. 5077 (RJW) (S.D.N.Y.). Although the Court granted plaintiff's application for appointment of counsel, see Order dated April 5, 2000, and the case has been reviewed by at least one attorney on this Court's pro bono panel, to date, no attorney has agreed to represent plaintiff. Pretrial discovery has been proceeding and is scheduled to be completed by September 4, 2001.
Some of the named defendants are employed by Correctional Physician Services, Inc., a company which provides contractual medical services to prisoners at Green Haven.
Presently before the Court is plaintiff's motion pursuant to Rule 706 of the Federal Rules of Evidence, for appointment of an expert witness. That motion has been opposed by several of the defendants. For the reasons set forth below, the motion is denied.
Although plaintiff's motion was brought pursuant to Federal Rule of Evidence 704, it is apparent that plaintiff is seeking a court-appointed expert witness under Rule 706.
DISCUSSION
Under Federal Rule of Evidence 706, the Court, on its own motion or on motion of another party, may appoint an expert witness. Fed.R.Evid. 706 (a). The determination to appoint an expert rests solely in the Court's discretion and is to be informed by such factors as the complexity of the matters to be determined and the Court's need for a neutral, expert view. See Ledford v. Sullivan, 105 F.3d 354, 358-59, 361 (7th Cir. 1997); Reynolds v. Goord, No. 98 Civ. 6722 (DLC), 2000 WL 825690, at *2 (S.D.N.Y. June 26, 2000) (court determines that a court-appointed expert will be of assistance because of complex issues of infectious disease, public health, and correctional medicine, as well as the significant public policy implications presented by the case). Where such an expert is appointed, his or her compensation is to be paid by the parties; however, where, as in this action, one of the parties is indigent, in compelling circumstances the Court may assess the entire cost of the expert's compensation to the other party. See Fed.R.Evid. 706(b); Ledford, 105 F.3d at 361; McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1990); Webster v. Sowders, 846 F.2d 1032, 1038 (6th Cir. 1988);Reynolds, 2000 WL 825690, at *3; cf. Ross v. Coombe, No. 94-CV-6497, 1996 WL 637756, at **2-3 (W.D.N.Y. Oct. 30, 1996) (court did not find sufficiently compelling circumstances to require correctional department defendants to pay for independent examination of the plaintiff).
In his motion, plaintiff focuses on his allegation that defendants have unlawfully delayed an operation on plaintiff for removal of a brain tumor solely based on the cost of such an operation and the cost of follow-up treatment. See Declaration of William Pabon, dated May 15, 2001 ("Pabon Decl."), ¶ 4. Plaintiff contends that this case qualifies for the appointment of an expert because it requires "the analysis of complex questions of proper medical treatment regarding neurology and the proper treatment of brain tumors." Id. at ¶ 9. It is undisputed that plaintiff's brain tumor has been monitored by medical personnel, and defendants have asserted in opposition to plaintiff's motion that the medical records
will show that the plaintiff has had serial radiographic studies performed over the years to monitor the benign brain tumor and it has been determined that the brain tumor has not changed in any respect. It is the stable nature of the plaintiff's tumor which dictates that no surgical intervention is necessary or called for. These determinations are grounded in medical judgment. Significantly, the plaintiff's medical records indicate extensive and repeated evaluation of the plaintiff's various medical conditions.See Affirmation in Opposition of Jonathan A. Bath, Esq., dated July 2, 2001, at 3.
Under these circumstances, the Court concludes that at present there is insufficient justification to exercise its discretion to appoint a court expert, who is to be compensated by defendants. As a general matter, such measures should be taken sparingly, particularly given the large volume of cases in which indigent prisoners allege the improper deprivation of medical care, and the substantial expense that defendants may have to bear if the Court does appoint an expert. Moreover, in Eighth Amendment medical care cases, where a prisoner is alleging deliberate indifference to his serious medical needs, the subjective element of deliberate indifference turns on the state of mind of the official, i.e., whether an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." Hayes v. N YS.D.O.C. Officers, No. 97 Civ. 7383 (MBM), 1998 WL 901730, at *8 (S.D.N.Y. Dec. 28, 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1995)). An analysis of this issue does not involve "probing, complex questions concerning medical diagnosis and judgment." Ledford, 105 F.3d at 359-60; see also Pabon v. Goord, No. 99 Civ. 2196 (WHP) (DFE), 2001 WL 237381, at **2-3 (S.D.N Y Mar. 9, 2001) (denying request for court-appointed expert brought by same plaintiff as in this action). This conclusion is particularly apt in this action, where plaintiff contends that he was denied an operation based solely on its possible cost to the defendants.
Finally, the Court retains the discretion to appoint an expert at a future juncture in this litigation, if necessary, when the record is more complete and, the issues to be tried are clearly defined.
Accordingly, plaintiff's motion for a court-appointed expert is denied.
So ordered.