Free Order on Motion to Appoint - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kim Michael Cook,
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Plaintiff,
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vs. Dr. Robertson, et al.,

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Defendants.
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No. CV-03-1100-PHX-ROS (VAM) ORDER

This matter arises on Plaintiff's Motion to Appoint an Expert. (docket # 74)
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Defendants oppose the motion. (dockets # 80, # 85)
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Background
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On June 28, 2004, Plaintiff filed a First Amended Complaint seeking damages based on
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Defendants' failure to provide medical care for sleep apnea in violation of the Eighth
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Amendment. On October 18, 2004, the Court dismissed CCA and required Defendants
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Robertson and Benjamin to file an answer to Count I of the First Amended Complaint.
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Defendant Robertson filed an Answer on November 29, 2005. (docket # 26) After filing an
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unsuccessful motion to dismiss, on June 16, 2006, Defendant Benjamin filed an Answer.
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(docket # 48) Over six months later, Plaintiff filed the pending motion requesting that the court
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appoint a medical expert in this matter pursuant to Federal Rule of Evidence 706.
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Analysis The Court first notes that 28 U.S.C. § 1915 does not provide for the appointment of experts to assistant indigent civil litigants. Pedroza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995). Further, there is no constitutional right to an expert witness to substantiate an indigent plaintiff's claims. Johnson v. Hubbard, 698 F.2d 286 (6th Cir. 1983) Federal Rule of Evidence 706 provides that the court may appoint an expert witness, set compensation for the witness, and determine which portion of the expert's bill each party will pay. Id. In determining whether to appoint an expert witness, the court considers "the

complexity of the evidence, and the court's need for an impartial viewpoint." Beaver v. Board of County Commissioners, No. 91-0165-S-EJL, 1991 WL 350749, * 1-2 (D.Idaho, Sept. 19, 1991)(appointing expert in § 1983 class action involving fifteen claims including challenges to the nutritional sufficiency of the food and whether the jail complied with fire safety standards.) Here, Plaintiff merely states that he needs an expert to "define the truth" in this case and because Defendants' experts are "long time employees" of the prison system and "are not fair and objective." (docket # 74) Plaintiff, however, does not provide any further evidence or argument in support of his request for the appointment of an expert. Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs as related to the treatment of sleep apnea. At issue is whether Defendants were deliberately indifferent to Plaintiff's need for medical treatment for sleep apnea, not whether Defendants committed medical malpractice. The issue of deliberate indifference to serious medical needs is not so complex that an expert is required to present or prove the case. Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir. 1997)(stating that because deliberate indifference is a subjective standard, distinct from the objective inquiry involved in medical malpractice cases, expert witness was not warranted to assist indigent plaintiff in presenting his claims); Frazetti v. Marion County Jail, No. CV 04163-KI, 2004 WL 3058287, * 2 (D.Or., May 21, 2004)(declining to appoint expert where plaintiff failed to establish "that the complexity of [the] case warrant[ed] the appointment of an expert to assist the court.")(emphasis in original). Plaintiff may rely on medical texts or the records of prior treating physicians to establish his claims. Fed.R.Evid. 803(18).
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Based on the foregoing, the Court will deny Plaintiff's motion for appointment of a medical expert. In accordance with the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint an Expert (docket # 74) is DENIED. DATED this 6th day of February, 2007.

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