(PC) Solvey v. Gates ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, 1:19-cv-01444-JLT-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF 13 vs. MEDICAL EXPERT (ECF No. 62.) 14 S. GATES, et al., 15 Defendants. 16 17 18 19 20 21 I. BACKGROUND 22 Stanley H. Solvey (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 24 First Amended Complaint filed on January 14, 2020, against defendant Dr. Andrew Zepp 25 (“Defendant”) for refusing to provide Plaintiff with sufficient pain medication as he awaited 26 surgery, in violation of the Eighth Amendment. (ECF No. 14.) 27 On August 15, 2022, Plaintiff filed a motion for the Court to appoint a medical expert in 28 this case. (ECF No. 62.) 1 II. APPOINTMENT OF EXPERT WITNESS 2 Legal Standards 3 The court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal 4 Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its own, 5 the court may order the parties to show cause why expert witnesses should not be appointed . . .” 6 Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 7 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a witness who is qualified as an expert by 8 knowledge, skill, experience, training or education may testify in the form of an opinion or 9 otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the 10 trier of fact to understand the evidence or to determine a fact in issue . . .” Fed. R. Evid. 702. 11 The appointment of such an expert witness may be appropriate when “scientific, technical, or 12 other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a 13 fact in issue.” Ledford v. Sullivan, 105 F.3d 354, 358–59 (7th Cir. 1997). 14 While the court has the discretion to appoint an expert and to apportion costs, including 15 the appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified 16 School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071, where the cost 17 would likely be apportioned to the government, the court should exercise caution. Moreover, 18 Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition against using 19 public funds to pay for the expenses of witnesses, Manriquez v. Huchins, 2012 WL 5880431, 20 *12 (E.D.Cal. 2012), nor does Rule 706 contemplate court appointment and compensation of an 21 expert witness as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL 524037, *2 (S.D.Cal. 22 2013). 23 Discussion 24 Plaintiff requests appointment by the Court of a medical expert to assist him in refuting 25 Defendant’s medical expert’s opinion regarding two issues. Plaintiff argues that the medical 26 issues are beyond his expertise. 27 While the court is cognizant of the challenges an IFP litigant such as Plaintiff faces in 28 retaining an expert witness, the IFP statute does not grant the court the authority to appoint expert 1 witnesses on behalf of a party. 28 U.S.C. § 1915; See also Pedraza v. Jones, 71 F.3d 194, 196 2 (5th Cir. 1995). 3 Plaintiff’s claim remaining in this case is against defendant Dr. Andrew Zepp for refusing 4 to provide Plaintiff with sufficient pain medication as he awaited surgery, in violation of the 5 Eighth Amendment. The Court considers whether an expert witness would assist the court in 6 understanding the evidence or to determining a fact in issue. Fed. R. Evid. 702. Here, Plaintiff’s 7 allegations are no more complex than those found in a majority of medical cases pending before 8 this Court. The court does not require an expert witness to determine whether Defendant failed 9 to provide Plaintiff with sufficient pain medication. Therefore, Plaintiff’s request for the 10 appointment of expert witnesses shall be denied. 11 III. CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for the 13 appointment of an expert witness, filed on August 15, 2022, is DENIED. 14 IT IS SO ORDERED. 15 16 Dated: August 29, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28