(PC) Patton v. Loadholt ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. PATTON, No. 2: 19-cv-0451 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 F.N.P. LOADHOLT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for appointment of an 19 impartial expert pursuant to Federal Rule of Evidence 706. (ECF No. 60.) For the reasons stated 20 herein, plaintiff’s motion for appointment of an impartial expert is denied. 21 Legal Standard 22 The court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal 23 Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its own, the 24 court may order the parties to show cause why expert witnesses should not be appointed...” Fed. 25 R. Evid. 706(a). Pursuant to Rule 702, “a witness who is qualified as an expert by knowledge, 26 skill, experience, training or education may testify in the form of an opinion or otherwise if: 27 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to 28 understand the evidence or to determine a fact in issue...” Fed. R. Evid. 702. 1 Where a party has filed a motion for appointment of a neutral expert under Rule 706, the court must provide a reasoned explanation of its 2 ruling on the motion. Gorton v. Todd, 793 F.Supp.2d 1171, 1178 (E.D. Cal. 2011). Several factors guide the court’s decision. First, 3 and most importantly, the court must consider whether the opinion of a neutral expert will promote accurate fact finding. Id. at 1179. 4 The court may also consider the ability of the indigent party to obtain an expert and the significance of the rights at stake in the case. Id. at 5 1182-84. Expert witnesses should not be appointed where they are not necessary or significantly useful for the trier of fact to 6 comprehend a material issue in a case. Id. at 1181. 7 Johnson v. Cate, 2015 WL 5321784, at *2 (E.D. Cal. Sept. 10, 2015). 8 The determination to appoint an expert rests solely in the court’s discretion and is to be 9 informed by such factors as the complexity of the matters to be determined and the court’s need 10 for a neutral, expert review. See Ledford v. Sullivan, 105 F.3d 354, 358–59 (7th Cir. 1997). 11 Conversely, it is much more common in our adversarial judicial system for the parties to retain 12 their own medical experts. 13 Discussion 14 This action proceeds on plaintiff’s amended complaint filed June 7, 2019. (ECF No. 9.) 15 Plaintiff alleges that defendants denied him treatment for hepatitis C due to the cost of the 16 treatment. 17 In the pending motion, plaintiff requests that the court appoint an impartial expert who 18 will evaluate and assess the medical disputes which will be dispositive in summary judgment and 19 trial. (ECF No. 60.) Plaintiff alleges that an impartial expert could, for example, inform the court 20 of the time intervals in which plaintiff should have been tested for fibrosis escalation to assure 21 that plaintiff was provided with medication before his liver significantly scarred. (Id. at 3.) 22 Plaintiff alleges that an impartial expert could, for example, inform the court if plaintiff’s present 23 liver scarring, cirrhosis, kidney disease and high blood pressure are related to being untreated for 24 hepatitis C. (Id.) 25 The discovery deadline was July 10, 2020, and the dispositive motion deadline is October 26 2, 2020. (ECF No. 40.) At this stage of the litigation, the undersigned cannot determine whether 27 appointment of a neutral expert is required. The undersigned cannot determine whether 28 appointment of a neutral expert is required until further development of the record. Accordingly, 1 plaintiff’s motion for appointment of a neutral expert is denied as premature. 2 If the parties file dispositive motions, plaintiff may refile his request for appointment of a 3 neutral expert. If no dispositive motions are filed, plaintiff may request that the trial judge 4 appoint a neutral expert. 5 Additional Matter—Service of Defendant Brar 6 On July 7, 2020, plaintiff filed a request for information regarding service of defendant 7 Brar. (ECF No. 56.) The undersigned addresses this request herein. 8 On September 12, 2019, the undersigned ordered service of defendant Brar. (ECF No. 9 11.) On November 20, 2019, service as to defendant Brar was returned unexecuted. (ECF No. 10 19.) On February 12, 2020, the court ordered plaintiff to provide additional information for 11 service of defendant Brar within sixty days. (ECF No. 27.) It appears that plaintiff’s July 7, 2020 12 request is his untimely response to the February 12, 2020 order. 13 In his July 7, 2020 request, plaintiff alleges that he asked the California Medical Board for 14 information regarding the location of defendant Brar. Attached to the request is a copy of a 15 medical release form, apparently prepared by the California Medical Board, which includes an 16 address for defendant Brar in Kingsburg, California. (ECF No. 56 at 7.) Plaintiff is ordered to 17 return the forms necessary for service of defendant Brar at the address in Kingsburg, California. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motion for appointment of a neutral expert (ECF No. 60) is denied without 20 prejudice as premature; 21 2. The Clerk of the Court is directed to send plaintiff a summons, one USM-285 form, 22 along with an instruction sheet and a copy of the amended complaint filed June 7, 23 2019; 24 3. Within thirty days from the date of this order, plaintiff shall complete and submit the 25 attached Notice of Submission of Documents to the court, with the following documents: 26 a. One completed USM-285 form for defendant Brar; 27 b. Two copies of the endorsed amended complaint filed June 7, 2019; and 28 //// MADE SLD VOUT LING IN RATIO NO MOP Te OY TV 1 c. One completed summons form or show good cause why he cannot provide such 2 | information. 3 | Dated: August 13, 2020 ‘ Frese Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 Patt45 1.exp 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 ANTHONY L. PATTON, 9 Plaintiff, 10 v. 11 F.N.P. LOADHOLT, et al., 12 Defendants. No. 2: 19-cv-0451 KJM KJN P 13 14 NOTICE OF SUBMISSION OF DOCUMENTS 15 16 Plaintiff hereby submits the following documents in compliance with the court's order 17 filed _____________________ : 18 ____ completed summons form 19 ____ completed USM-285 forms 20 ____ copies of the ___________________ 21 Amended Complaint 22 DATED: 23 24 25 26 ________________________________ 27 Plaintiff 28