Opinion
No. 2:19-cv-0406 TLN KJN P
2022-10-12
Michael WITKIN, Plaintiff, v. Mariana LOTERSZTAIN, M.D., et al., Defendants.
Michael Aaron Witkin, Vallejo, CA, Pro Se. Jason R. Cale, Office of the Attorney General, Sacramento, CA, for Defendants Mariana Lotersztain, Wayne Scott, Nonato Largoza, Martin Kuersten, S. Gates. Aaron T. Schultz, Michael C. Austin, Galloway, Lucchese, Everson & Picchi, Pleasant Hill, CA, Jason R. Cale, Office of the Attorney General, Sacramento, CA, for Defendant J. Lin.
Michael Aaron Witkin, Vallejo, CA, Pro Se. Jason R. Cale, Office of the Attorney General, Sacramento, CA, for Defendants Mariana Lotersztain, Wayne Scott, Nonato Largoza, Martin Kuersten, S. Gates. Aaron T. Schultz, Michael C. Austin, Galloway, Lucchese, Everson & Picchi, Pleasant Hill, CA, Jason R. Cale, Office of the Attorney General, Sacramento, CA, for Defendant J. Lin.
ORDER
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a former state prisoner, proceeding pro se. This case proceeds on plaintiff's complaint alleging violations of his Eighth and First Amendment rights, and includes state law claims. (ECF Nos. 1, 8.) On July 12, 2022, plaintiff filed a motion for appointment of a medical expert under Rule 706(a) of the Federal Rules of Evidence, which is now fully briefed. As set forth below, plaintiff's motion is denied without prejudice.
Background
Motions for summary judgment by Dr. Lin and the remaining defendants are pending. (ECF Nos. 53, 55.) Plaintiff was granted leave to file his oppositions after his motion for expert witness was decided. (ECF No. 80.)
Pleading Allegations
In his original complaint, plaintiff alleges, in pertinent part, the following. On December 23, 2017, while playing football at California State Prison, Solano, plaintiff fractured the fourth finger of his right hand. Despite promptly reporting to the Correctional Treatment Center, emergency treatment was delayed, and plaintiff's finger was not properly splinted or immobilized. Plaintiff's hand was x-rayed on December 25, and a plaster splint was applied to his entire hand, wrist and forearm. A routine orthopedic referral issued, and plaintiff was seen by defendant Dr. Lin on January 9, 2018. Dr. Lin allegedly "informed plaintiff that due to the fusion of the bones in his finger, surgical intervention would provide the same result as placing the finger in the proper splint that should have been applied initially, and letting it heal on its own." (ECF No. 1 at 4.) Plaintiff contends that Dr. Lin should have recommended surgical intervention to prevent permanent injury to plaintiff's finger.
Plaintiff alleges that defendants were deliberately indifferent to plaintiff's serious medical needs by refusing to treat or properly treat plaintiff's broken finger, resulting in the permanent disfigurement of and loss of range of motion to his finger, and negligently inflicted emotional distress and were professionally negligent under state law.
Plaintiff's Motion for Expert
The Parties' Positions
Plaintiff seeks the appointment of an expert witness in connection with his Eighth Amendment claims against defendant Dr. Lin. Initially, plaintiff agrees that "the only issue in this case as to Dr. Lin is whether Dr. Lin should have recommended surgery." (ECF No. 76 at 2.) Plaintiff argues that expert testimony is necessary to "comprehend the legitimate standard of care applicable in this case." (ECF No. 76 at 2.) Plaintiff maintains that defendant Lin's expert, Dr. Burgar, failed to provide factual information as to Dr. Lin's "degree of learning and skill," such that the court will not be able to render a meaningful decision. Plaintiff argues that Dr. Lin's evidence created a dispute of fact about both the standard of care and the treatment option plaintiff chose; plaintiff concedes that Dr. Burgar testified that Dr. Lin determined splinting was the best option but argues that in order to comply with the standard of care, Dr. Lin had to recommend plaintiff receive surgery. (ECF No. 76 at 3.) Plaintiff denies he chose splinting over the closed reduction and external fixation ("CREF") procedure. Plaintiff contends such disputes require neutral expert testimony to assist the court in reaching its decision, arguing that the court would have to be an orthopedic hand surgeon to provide a "reasonably accurate" decision. (Id. at 4.) Finally, plaintiff contends that appointing a neutral expert in this Eighth Amendment claim "would vindicate plaintiff's rights to minimally adequate medical care." (ECF No. 1 at 4.)
In opposition, defendant argues that plaintiff simply seeks to have the court appoint and pay for a non-neutral expert to oppose defendant's motion for summary judgment, which is not permitted. (ECF No. 79 at 1, 3-4.) Moreover, the record is fully developed, and because the key issue is whether plaintiff chose the CREF treatment option rather than splinting, if the court determines after reviewing the records in this case that plaintiff was provided a choice between splinting and CREF and plaintiff chose splinting, no neutral expert would be needed. Defendant argues that Dr. Lin's contemporaneous medical records, discovery responses and plaintiff's deposition testimony are sufficient to enable the court to determine whether there is a material dispute of fact that precludes summary judgment. In addition, defendant contends that plaintiff's deposition testimony shows plaintiff chose splinting. (ECF No. 79 at 5.)
In reply, plaintiff again denies he chose splinting, and contends his "deposition testimony simply reveals that Dr. Lin wanted to pursue an easier course of treatment than the one plaintiff chose." (ECF No. 85 at 3.) Further, plaintiff argues that Dr. Lin's discovery responses are contradicted by his own expert Dr. Burgar's declaration. (Id. at 4.) Plaintiff maintains that there is a serious dispute as to what course of treatment was appropriate and consistent with the standard of care, and therefore a neutral expert witness is required to assist the court in determining whether defendant Lin's treatment fell so far below the standard of care that a jury could find that defendant was subjectively aware of the risk of harm to plaintiff.
A. Standards
Federal Rule of Evidence 706 provides that "the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing." Fed. R. Evid. 706(a).
However, court-appointed experts typically are used in complex litigation where the record is not clearly developed by the parties, and generally serve the purpose of aiding the court in understanding the subject matter at hand. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (appointing a physician expert witness where medical testimony on record was "not particularly clear"); Woodroffe v. Oregon, 2014 WL 1383400, at *5 (D. Or. April 8, 2014) ("This Rule permits a court to appoint a neutral expert to assist the court to understand complex, technical, or esoteric subject matter."); In re Joint E. & S. Districts Asbestos Litig., 830 F. Supp. 686, 693 (E.D. N.Y. 1993) (noting that court appointment of experts is appropriate only in "rare circumstances" and should be reserved for "exceptional cases" in which the ordinary adversarial process does not suffice, such as complex mass tort problems.)
A "court's decision whether to appoint an expert is discretionary," but it is well settled that "there is no statutory authorization for a court-appointed investigator for civil litigants proceeding in forma pauperis." Snow v. Mar, 785 F. App'x 465, 466 (9th Cir. 2019) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 n.7 (9th Cir. 2002)). Courts may not invoke Rule 706 simply to "appoint an expert on behalf of an indigent civil party." Woodroffe, 2014 WL 1383400, at *5; Fed. R. Evid. 706(e); Faletogo v. Moya, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 "does not contemplate court appointment and compensation of an expert witness as an advocate for one of the parties."); see also Gorton v. Todd, 793 F. Supp. 2d 1171, 1178 n.6 (E.D. Cal. 2011) (Rule 706 did not permit the appointment of a neutral expert witness solely for an indigent prisoners' "own benefit" in aiming to prove deliberate indifference.) Indeed, "28 U.S.C. § 1915 does not authorize the court to appoint an expert for plaintiff's benefit to be paid by the court." Gorton, 793 F. Supp. 2d at 1184 n.11. The expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989).
B. Discussion
To the extent plaintiff seeks appointment of an expert witness to testify to plaintiff's view of the medical standard of care, such appointment is inappropriate. Rule 706 does not contemplate court appointment and compensation of an expert witness as an advocate for plaintiff. Manriquez v. Huchins, 2012 WL 5880431, *14 (E.D. Cal. 2012) (purpose of a court-appointed expert is to assist the trier of fact, not to serve as an advocate); Brooks v. Tate, 2013 WL 4049043, *1 (E.D. Cal. Aug. 7, 2013) (avoiding bias or otherwise assisting one party is not the purpose of Rule 706); Gorrell v. Sneath, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3, 2013) (purpose of court-appointed expert is to assist the trier of fact, not to serve as an advocate for a particular party). Rather, Rule 706(a) of the Federal Rules of Evidence permits the court to appoint only neutral expert witnesses.
In addition, the undersigned is not persuaded that plaintiff's deliberate indifference claims or state law negligence claims are factually or legally complex such that the appointment of a neutral expert witness is required. Rather, given plaintiff's medical records, the parties' discovery responses, as well as plaintiff's deposition testimony, the undersigned concludes that an expert witness is not required for the court to understand the relevant subject matter. See Herrington v. Elliot-Blakeslee, 2016 WL 1420976, at *4 (D. Or. Apr. 11, 2016) (denying a motion for a court-appointed expert and finding that the medical records that the defendants provided in support of their motion for summary judgment were clearly developed). The record evidence is sufficient to assist the undersigned in understanding plaintiff's medical condition, the objective medical evidence, and the treatment options considered. See Wallace v. Pierce Cnty. Sheriff's Dep't, 2019 WL 3736658, at *3 (W.D. Wash. Aug. 8, 2019) (denying motion for court-appointed expert where the plaintiff alleged deliberate indifference to his medical needs because "the facts of this case are not extraordinary, and the legal issues are not complex") (citation omitted).
Therefore, the undersigned exercises his discretion and denies plaintiff's motion to appoint a medical expert under Rule 706. Should the court decide at a later date, including at trial, that such expert testimony is required, the court may, sua sponte, appoint a neutral expert at that time.
Extension of Time
In light of the above, plaintiff is granted sixty days in which to file oppositions to the pending motions for summary judgment. Plaintiff is cautioned that the court will not be inclined to grant additional extensions of time. Failure to file timely oppositions will result in recommendations that the motions be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. The motion for appointment of expert witness (ECF No. 76) is denied without prejudice; and
2. Plaintiff is granted sixty days to file oppositions to the pending motions for summary judgment (ECF Nos. 53, 55).