(PC) Gorton v. Todd et al, No. 2:2008cv03069 - Document 117 (E.D. Cal. 2011)

Court Description: ORDER TO BE PUBLISHED signed by Senior Judge Lawrence K. Karlton on 6/29/11, ORDERING that the court finds that 69 the Magistrate Judge's order denying plaintiff's request for appointment of an expert witness under Rule 706 was clearly er roneous. Plaintiff shall submit an ex parte request to incur costs and request for payment of expert witness fees pursuant to General Order No. 230 within 60 days of the issuance of this order. Plaintiff may file the request under seal. The court n o longer refers this case to the Magistrate Judge. All future non-discovery motions shall be filed before this court. All previously scheduled dates are VACATED, and a Scheduling Conference is hereby SET for 9/19/2011 at 02:00 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The parties shall file status reports 14 days prior to the conference. (Kastilahn, A)

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(PC) Gorton v. Todd et al Doc. 117 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES ROBERT GORTON, NO. CIV. S-08-3069 LKK/GGH P Plaintiff, 12 13 v. O R D E R 14 TODD, et al., TO BE PUBLISHED 15 Defendants. 16 / 17 18 Plaintiff, an indigent prisoner who was initially proceeding 19 with limited representation for the purposes of this motion, brings 20 claims against prison medical officers and U.C. Davis Medical 21 Center physicians contending that their treatment of his kidney 22 disorders fell below constitutional adequacy. Plaintiff requested 23 appointment of a medical expert, which was denied by the Magistrate 24 Judge. The Magistrate Judge subsequently recommended that this 25 court grant summary judgment for the U.C. Davis defendants largely 26 due to the lack of expert testimony supporting plaintiff’s claims. 1 Dockets.Justia.com 1 This court denied 2 prejudice and sought volunteer counsel to represent plaintiff on 3 the limited question of whether his constitutional rights were 4 offended by the Magistrate Judge’s denial of his request for 5 appointment 6 appointed for plaintiff indicated that they intend to continue 7 representing him following resolution of this motion. of a their motion medical for expert. summary At oral judgment argument, without counsel 8 For the reasons discussed below, the court determines that the 9 Magistrate Judge’s denial of plaintiff’s request for appointment 10 of 11 nonetheless declines to appoint an impartial witness because 12 plaintiff’s counsel can move for reimbursement of expert witness 13 costs from this court’s non-appropriated fund. an impartial expert 14 witness was clearly erroneous, but I. BACKGROUND 15 On December 18, 2008, plaintiff Charles Robert Gorton 16 (“plaintiff” or “Gorton”) filed a complaint against numerous 17 medical providers at Mule Creek State Prison (“state defendants”) 18 and U.C. Davis Medical Center (“U.C. Davis defendants”)1 (Doc. No. 19 1.) 20 constitutional rights under the Eighth Amendment by delaying 21 treatment and otherwise providing inadequate treatment of his 22 kidney disorders, which allegedly caused him pain and suffering as 23 well as permanent damage to his health. (Id.) Plaintiff also filed Gorton alleged that these defendants violated his 24 25 26 1 The court notes that the parties in plaintiff’s original complaint were adjusted through an amended complaint in order to comply with pleading requirements. 2 1 an application to proceed in forma pauperis along with his 2 complaint. (Doc. No. 2.) He declared that he has minimal, if any, 3 assets and the California State Prison-LAC account clerk certified 4 that Gorton had no money in his account at the prison, his average 5 monthly balance over the last six months was $32.48, and the 6 average of monthly deposits to his account was $24.94. (Id.) 7 Gorton’s request to proceed in forma pauperis was subsequently 8 granted. (Doc. No. 7.) On February 26, 2009, plaintiff filed his 9 amended complaint. (Doc. No. 10). This amendment corrected several 10 pleading errors in Gorton’s original complaint and the Magistrate 11 Judge then ordered service upon defendants. (Doc. No. 11.) 12 On May 28, 2009, the Magistrate Judge entered a discovery and 13 scheduling order following an answer from four of the U.C. Davis 14 defendants. (Doc. No. 21.) Discovery was scheduled to close on 15 September 18, 2009. (Id.) The scheduling order made no reference 16 to expert discovery. (Id.) On August 4, 2009, the Magistrate Judge 17 entered an order setting the deadline for completion of discovery 18 between Gorton and a U.C. Davis defendant who had only recently 19 been served to November 6, 2009. (Doc. No. 28.) 20 On June 30, on 2009, Gorton propounded his Davis defendants Dr. U.C. first of 21 interrogatories 22 Dr. Frazier Stevenson and Dr. Pappoe. (Exs. A, B, C to Pl. Mtn. 23 Reconsideration, Doc. No. 111-1.) Among several requests, 24 plaintiff 25 defendants: 26 /// propounded the following 3 Andrew set interrogatory on Chin, these 1 2 3 4 5 Suppose a person begins to exhibit the following symptoms: [ ¶ ] (3+ pitting edema bilaterally in the feet and legs; 3+ pitting edema up to the abdomen; 2+ pitting edema in the left arm and hand; shortness of breath, orthopne and weakness; [lab results] = albumin (serum) - 2.0 . . . UA [urinalysis] - 3+ proteinuria; microalbumin - 2,311; microalbumin to creatinine ration - 3,040.70). [ ¶ ] Considering these symptoms and in your professional opinion, how soon (days/weeks) should that person be referred to a Nephrologist for consult? 6 Plaintiff has represented that these symptoms were drawn from his 7 own medical file. (Pl.’s Mot. Recons., Doc. No. 111, at 10.) On 8 August 14, 2009, Dr. Chin, Dr. Stevenson, and Dr. Pappoe all 9 refused to answer this interrogatory on the grounds that it called 10 for expert testimony. (Exs. D, E, F to Pl. Mtn. Reconsideration, 11 Doc. No. 111-1.) On December 15, 2009, Gorton moved to compel Dr. 12 Chin’s and Dr. Stevenson’s responses to this interrogatory, among 13 other issues. (Doc. No. 58.) They argued that they should not be 14 compelled to answer the interrogatory because, “Plaintiff is 15 seeking expert opinion before the disclosure of expert [sic] and 16 is improperly asking an expert opinion from a person not disclosed 17 as an expert.” (Id.) On January 14, 2010, the Magistrate Judge 18 denied plaintiff’s motion to compel responses to this interrogatory 19 on the grounds that plaintiff is not permitted to ask Dr. Chin and 20 Dr. Stevenson “hypothetical expert questions.” (Doc. No. 68.) 21 On August 27, 2009, plaintiff moved for appointment of 22 counsel. (Doc. No. 30.) He argued that appointment of counsel was 23 appropriate because, inter alia, (1) “The legal and medical issues 24 involved in this case are complex and involve medical knowledge and 25 expertise of which Plaintiff does not have. . . ;” (2) “The 26 4 1 Plaintiff has no formal legal or medical training, [and] therefore 2 lacks the necessary expertise to successfully litigate this degree 3 of case . . . ;” and (3) “The Plaintiff does not have any financial 4 resources to secure the testimony of expert witnesses.” (Id. 5 (emphasis added).) On September 14, 2009, the Magistrate Judge 6 denied plaintiff’s motion. (Doc. No. 35.) 7 On September 21, 2009, plaintiff moved to compel discovery 8 from and impose sanctions against the U.C. Davis defendants. (Doc. 9 No. 36.) While that motion was pending, the U.C. Davis defendants 10 moved for summary judgment. (Doc. No. 41.) The U.C. Davis 11 defendants amended their motion on November 24, 2009. (Doc. No. 12 49.) 13 On December 15, 2009, plaintiff moved for a court appointed 14 medical expert witness under Fed. R. Evid. 706 (“Rule 706”). (Doc. 15 No. 53.)2 Gorton indicated that he filed this motion in response 16 to the U.C. Davis defendants’ argument that, “[U]nless plaintiff 17 can provide expert evidence that the treatment he received equated 18 with deliberate indifference thereby creating a material issue of 19 fact, summary judgment should be entered for defendants.” (Id.) 20 Plaintiff explained that he is indigent and, thus, unable to afford 21 “the costs of retaining the services of a licensed medical expert, 22 trained 23 explicitly cited Rule 706, which only allows courts to appoint 24 impartial expert witnesses, the language of his request could be in the field of nephrology.” (Id.) While plaintiff 25 2 26 This motion was filed again on December 18, 2009. (Doc. No. 61.) 5 1 interpreted as a request for appointment of an expert witness for 2 his benefit. (Id. (“In accordance with Rule 706, of the Federal 3 Rules of Evidence, Plaintiff hereby Motions the Court to provide 4 him with a medical expert . . . .”) (emphasis added).) 5 On the same day, plaintiff filed his opposition to the U.C. 6 Davis defendants’ motion for summary judgment. (Doc. No. 57.) 7 Gorton argued that, 8 Within the Defendant’s Memorandum of Points and Authorities . . . , they have established the requirement to provide opposing Expert evidence such that, “unless plaintiff can provide expert evidence . . . summary judgment should be entered for defendants.” [ ¶ ] If that is in fact the case of Law, then the Law has reverted back towards tyranny against the poor, so the rich can prevail. 9 10 11 12 13 (Id. at 1-2.) Plaintiff, noting his pending motion for appointment 14 of 15 concerning the diagnosis and treatment of his diseases as evidence 16 to counter the expert testimony from the U.C. Davis defendants. 17 (See id.) Specifically, he provided an entry from a medical 18 encyclopedia on nephrotic syndrome, which described the causes, 19 symptoms, exams and tests, and treatment of the disease. (Ex. A to 20 Pl.’s Mem. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), Doc. No. 21 57.) 22 encyclopedia on membranous nephropathy, which described the same 23 information for that disease. (Id.) Gorton provided additional 24 information on the causes and treatment of membranous nephropathy 25 from EdREN, a website of the Renal Unit of the Royal Infirmary of 26 Edinburgh. (Id.) This document also described factors that may an expert He witness, likewise attempted attached an 6 to entry present from several the same articles medical 1 increase the chance of loss of kidney function. (Id.) While these 2 documents do not describe the standard of care, they do indicate 3 the 4 possibility that defendants may have had knowledge from his test 5 results that he faced a serious risk of harm absent prompt 6 diagnosis and treatment. seriousness of plaintiff’s diagnoses and suggest the 7 On December 18, 2009, the U.C. Davis defendants filed an 8 opposition to plaintiff’s motion for appointment of an expert 9 witness. (Doc. No. 60.) They contended that plaintiff’s request 10 under Rule 706 was for an expert witness for his benefit as opposed 11 to 12 Alternatively, these defendants argued that, “The matters set forth 13 in this case are not so complex in that it would require a court 14 to have an expert to understand the issues at hand.” (Id.) 15 16 the benefit of the court or the trier of fact. (Id.) On January 21, 2010, the Magistrate Judge denied plaintiff’s request for appointment of an expert witness. (Doc. No. 69.) 17 On April 30, 2010, the state defendants moved for summary 18 judgment. (Doc. No. 71.) On May 7, 2010, Gorton moved for a stay 19 of the motion on the grounds that no scheduling order had been 20 issued with respect to the state defendants. (Doc. No. 72.) 21 Plaintiff indicated that he had not sought discovery from these 22 defendants because no court order authorized him to do so. (Id.) 23 On May 21, 2010, the Magistrate Judge issued an order vacating the 24 state defendant’s motion. The Magistrate Judge chastised plaintiff 25 for not earlier propounding discovery upon the state defendants and 26 for being unaware that he did not require permission from the court 7 1 to conduct discovery. (Doc. No. 74.) He, nonetheless, vacated the 2 summary judgment motion and permitted plaintiff and the state 3 defendants to conduct discovery until August 18, 2010. (Id.) 4 On August 11, 2010,3 the Magistrate Judge issued findings and 5 recommendations that this court grant the U.C. Davis defendants’ 6 motion for summary judgment on the grounds that plaintiff had 7 failed to present a triable question on his claims against these 8 defendants because he did not produce expert witness testimony. 9 (Doc. No. 75.) On June 24, 2010, Gorton filed objections to the 10 findings and recommendations raising the same issues concerning 11 expert testimony that he argued in opposition to the motion for 12 summary judgment. (Doc. No. 78.) On August 11, 2010, this court 13 held that, “Given the legal complexity and the broad significance 14 of 15 successfully litigate cases such as the instant case without an 16 expert witness], the court has determined that this case may be 17 appropriate for the limited appointment of counsel as to the 18 question of whether the denial of plaintiff’s request for an expert 19 witness offends his constitutional rights.” (Doc. No. 83.) In a 20 footnote, the court further explained that, “The court will invite 21 the parties to consider whether experts should be appointed as a 22 matter of course when these cases are brought as well as under what 23 conditions, if any, must a district court grant such a request for 24 appointment in accordance with the Constitution. Further, the court [the apparent inability of an indigent prisoner to ever 25 3 26 The findings and recommendations were signed on June 7, 2010, but were filed on August 11, 2010. 8 1 will request briefing as to the anticipated scope of medical 2 testimony necessary, if any, and the administrative and financial 3 burdens appointment of expert witnesses in cases like these may 4 pose.”4 (Id.) On September 29, 2010, this court denied the U.C. 5 Davis defendants’ motion for summary judgment without prejudice as 6 it continued to seek volunteer limited counsel for plaintiff. (Doc. 7 No. 97.) On November 3, 2010, the court appointed Nicholas Short 8 and Dean Morehous as counsel for plaintiff to litigate the question 9 of whether Gorton is entitled to a medical expert. (Doc. No. 105.) 10 II. STANDARDS 11 A. Motion for Reconsideration 12 Under 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P. 72(a), and 13 L.R. 303(f), parties may seek reconsideration of a magistrate 14 judge’s non-dispositive order before a district judge. District 15 courts must “modify or set aside any part of the order that is 16 clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). 17 B. 18 In Estelle v. Gamble, the Supreme Court held that an inmate 19 making a Eighth Amendment claim based on prison medical treatment 20 must show “deliberate indifference to serious medical needs.” 21 429 U.S. 97, 104 (1976). In the Ninth Circuit, courts determine 22 whether such a showing has been met based on a two part test. The 23 plaintiff must first “show a serious medical need by demonstrating Deliberate Indifference to Serious Medical Need 24 4 25 26 All defendants contend that the subject matter discussed in this footnote is outside the scope of the motion. Thus, only plaintiff has provided any argument or discussion on these questions. 9 1 that failure to treat a prisoner’s condition could result in 2 further significant injury or the unnecessary and wanton infliction 3 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 4 (internal quotations omitted). Such injuries include (1) those that 5 “a reasonable doctor or patient would find important and worthy of 6 comment or treatment; (2) the presence of a medical condition that 7 significantly affects an individual’s daily activities; [and] 8 (3) the existence of chronic and substantial pain.” McGuckin v. 9 Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). 10 After making a showing of a serious medical need, the 11 plaintiff must show that “the defendant’s response to the need 12 was 13 requirement is “less stringent in cases involving a prisoner’s 14 medical needs than in other cases involving harm to incarcerated 15 individuals 16 inmates 17 competing administrative concerns.’” McGuckin, 974 F.2d at 1060 18 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). deliberately indifferent.” with because medical ‘[the] care Jett, State’s 439 F.3d at responsibility ordinarily does not 1096. to This provide conflict with 19 Accordingly, the Ninth Circuit has instructed courts to 20 consider two separate elements when determining whether defendants 21 were deliberately indifferent. First, the plaintiff must show “a 22 purposeful act or failure to respond to a prisoner’s pain or 23 possible medical need.” Jett, 439 F.3d at 1096. This element “may 24 be shown by the way in which prison physicians provide medical 25 care.” Id. Plaintiff, however, must be able to show that defendants 26 were subjectively aware of the risk of serious harm. Toguchi v. 10 1 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Subjective awareness 2 “may be shown by circumstantial evidence where the facts are 3 sufficient to demonstrate that a defendant actually knew of a risk 4 of harm.” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 5 2003). Second, the plaintiff must show that he was harmed by the 6 indifference. Jett, 439 F.3d at 1096. 7 III. ANALYSIS 8 The question before the court is under what conditions should 9 it appoint an impartial witness under Fed. R. Evid. 706 (“Rule 10 706”) where a plaintiff alleges deliberate indifference to a 11 serious medical need in violation of the Eighth Amendment and 12 whether those conditions apply to Gorton’s claims.5 While courts 13 infrequently 14 29 Charles Alan Wright et al., Federal Practice and Procedure 15 § 6304 (3d ed. Supp. 2011), the court here finds that an impartial 16 expert witness should have been appointed to provide the trier of 17 fact with an unbiased review of plaintiff’s medical care and that 18 costs for such a witness should have been paid by defendants. At 19 oral argument on this motion, plaintiff’s counsel indicated that 20 they intend to continue their representation of Gorton. Counsel for 21 plaintiff, thus, may request reimbursement for expert witness fees 22 from the non-appropriated fund. Nonetheless, given the frequency 23 with which this court is presented with cases similar to the case appoint expert witnesses under Rule 706, see 24 5 25 26 The court does not address the question of whether the Constitution requires appointment because, under the doctrine of Constitutional avoidance, it can resolves the question of whether appointment is appropriate under Rule 706. 11 1 at bar, the court will discuss several matters that should be 2 considered under Rule 706. 3 A. Rule 706 1. 4 Appointment 5 Under Rule 706, a district court may “on its own motion or on 6 the motion of any party enter an order to show cause why expert 7 witnesses should not be appointed.” Fed. R. Evid. 706(a). The Rule 8 only allows a court to appoint a neutral expert.6 See In re High 9 Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th 10 Cir. 2002). Courts of appeal review district court decisions under 11 Rule 706 for abuse of discretion. Walker v. Am. Home Shield Long 12 Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (finding 13 that district court did not abuse its discretion in appointing an 14 independent medical expert to help evaluate evidence). 2. 15 Compensation 16 Rule 706 also specifies the means by which such experts must 17 be compensated. Fed. R. Evid. 706(b). Expert witnesses are entitled 18 to reasonable compensation, which, in civil cases not involving 19 just compensation under the Fifth Amendment, “shall be paid by the 20 parties in such proportion and at such time as the court directs, 21 and thereafter charged in like manner as other costs.” Id. The 22 6 23 24 25 26 Defendants argued that plaintiff was seeking appointment of an expert witness for his own benefit, which all parties agree is not permitted under Rule 706 or 28 U.S.C. § 1915, the in forma pauperis statute. Plaintiff, however, made clear that he was seeking appointment of a neutral expert in his reply. While his initial request to the Magistrate Judge may have been ambiguous, the court nonetheless will proceed to solely consider whether an impartial expert witness should have been appointed. 12 1 Ninth Circuit has interpreted the phrase, “such proportion as the 2 court directs” to permit a “district court to apportion all the 3 cost to one side” in an appropriate case. McKinney v. Anderson, 4 924 F.2d 1500, 1511 (9th Cir. 1991), affirmed on other grounds 5 Helling v. McKinney, 509 U.S. 25 (1993). The Circuit reasoned that 6 such an interpretation is necessary because, “Otherwise, we are 7 faced with an inflexible rule that would prevent the district court 8 from appointing an expert witness whenever one of the parties in 9 an action is indigent, even when the expert would significantly 10 help the court.” Id. 11 B. Standards Guiding Application of Rule 706 12 The decision of whether to appoint an expert witness under 13 Rule 706 is discretionary. Consequently, the courts of appeals have 14 rarely identified circumstances under which a district court must 15 appoint a neutral expert. Rather, the cases interpreting Rule 706 16 typically 17 discretion when applying the rule. For this reason, the court now 18 considers the guideposts set forth by the appellate courts to 19 determine 20 determining if appointment of an expert witness is proper. explain the 21 1. 22 Several why factors the district district court courts did should not abuse consider its when Reasoned Explanation courts of appeal have determined that Rule 706 23 requires the district court, upon motion of a party, to “exercise 24 its discretion and expressly articulate a reasoned explanation for 25 its determination.” Gaviria v. Reynolds, 476 F.3d 940, 945 (D.C. 26 Cir. 2007) (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 13 1 326 F.3d 1333, 1348-49 (11th Cir. 2003) (“Where a party requests 2 the appointment of an expert to aid in evaluating evidence that is 3 relevant to a central issue in the case, the court is obligated to 4 fairly consider the request and to provide a reasoned explanation 5 for its ultimate decision on the matter.”); Steele v. Shah, 87 F.3d 6 1266, 1270-71 (11th Cir. 1996) (remanding motion to appoint counsel 7 to district court where “district court gave no explanation for the 8 refusal to appoint . . . .”)); see also Hannah v. United States, 9 523 F.3d 597, 601 (5th Cir. 2008) (finding that district court did 10 not abuse its discretion in denying motion for appointment of 11 expert witness where, inter alia, it “considered the request and 12 provided a reasoned denial.”). The Eleventh Circuit remanded a 13 motion for appointment of an expert witness where no explanation 14 was given because absent an explanation it was, “unable to review 15 the[] denial[] for abuse of discretion.” Steele, 87 F.3d at 1270. 16 No appellate court that has considered the issue has determined 17 that a unreasoned denial would be sufficient under the rule. While 18 the Ninth Circuit has not offered an opinion on this question, the 19 court nonetheless finds that it should follow the weight of 20 authority that requires a reasoned explanation for any decision 21 under Rule 706. 22 Here, the Magistrate Judge merely stated that, “On 23 December 15, 2009, and December 18, 2009, plaintiff filed motions 24 for the appointment of a court appointed medical expert. At this 25 time, appointment of a medical expert is not warranted. Fed. R. 26 Evid. 706. Accordingly, plaintiff’s motions are denied.” (Doc. No. 14 1 69.) This order failed to provide any reason for the denial aside 2 from a conclusory statement that appointment is not warranted. For 3 this reason, the court finds that the Magistrate Judge’s ruling on 4 plaintiff’s 5 erroneous. request for appointment of counsel was clearly 6 Defendants refer the court to Tuvulu v. Woodford, No. CIV. 7 S-04-1724 DFL KJM P, 2006 U.S. Dist. LEXIS 80642, at *12-13 (E.D. 8 Cal. Nov. 3, 2006) in support of their argument that the Magistrate 9 Judge’s denial of the request was sufficient. There, plaintiff, a 10 prisoner proceeding 11 psychologist as an expert witness to testify about the harm caused 12 by denial of private visits between parents and children. Id. The 13 Magistrate Judge declined to exercise her discretion to appoint a 14 neutral expert witness because “it does not take any specialized 15 knowledge 16 relationship caused by his incarceration and the resulting lack of 17 privacy.” Id. at *13. Thus, the Magistrate Judge provided a 18 reasoned explanation for her decision to decline to appoint a 19 neutral expert. In sum, her order followed the unanimous weight of 20 authority demanding reasoned decisions and does not support a 21 contention that the decision in the instant case was sufficient.7 22 /// 23 /// to pro evaluate se, the sought stress appointment on of plaintiff’s a family parental 24 7 25 26 The court notes that the explanation need not be extensive. At a minimum, however, it must explain why the court declined to exercise its discretion under the facts and posture of the specific case. 15 2. 1 Accurate Factfinding 2 Ultimately, the most important question a court must consider 3 when deciding whether to appoint a neutral expert witness is 4 whether doing so will promote accurate factfinding. 29 Charles Alan 5 Wright et al., Federal Practice and Procedure § 6304 (3d ed. Supp. 6 2011) (“The policy goal of Rule 706 is to promote accurate 7 factfinding.”). Accordingly, most courts considering appointment 8 of a neutral expert have focused their attention on this factor. 9 Upon review of these decisions, several themes become apparent. 10 In McKinney, a pro se inmate alleged that prison officials 11 were deliberately indifferent to his serious medical needs by 12 exposing him to environmental tobacco smoke (“ETS”). 924 F.2d at 13 1502. 14 described scientific reports on the effects of cigarette smoke. Id. 15 at 1505-07. Following this analysis, the court first held that the 16 district court has the discretion to appoint expert witnesses in 17 this case under Rule 706 even though plaintiff cannot contribute 18 to the costs of such witnesses. Id. at 1511. Moreover, the Circuit 19 advised the district court that, On appeal from a directed verdict, the Ninth Circuit Considering the complexity of the scientific evidence in the present case, we recommend that, on remand, the district court consider appointing an expert witness or witnesses who can provide the court with scientific information on the health effects of ETS and on the concentration levels of ETS in the Carson City prison. 20 21 22 23 24 Id. 25 In Smith v. Jenkins, 919 F.2d 90 (8th Cir. 1990), plaintiff 26 brought a claim of deliberate indifference to a serious medical 16 1 need on the grounds that a psychiatrist defendant denied him 2 necessary medical treatment for his mental illness. Id. at 91-92. 3 The plaintiff moved for appointment of an independent psychiatrist 4 to evaluate his condition and medical needs under Rule 706, but 5 that request was denied by the district court. 6 Eighth Circuit reversed the district court’s grant of summary 7 judgment for the defendant on the grounds that plaintiff’s medical 8 records were absent from the court record and that the record 9 contained “virtually no evidence of the appropriate standard of 10 care nor any indication whether [defendant]’s actions amounted to 11 deliberate indifference as measured by that standard.” Id. at 93. 12 On remand, the Circuit instructed the district court “to review 13 [plaintiff]’s medical records. If a dispute still exists between 14 the diagnosis and treatment before and after incarceration, an 15 independent 16 [plaintiff]’s medical records and provide an opinion as to the 17 proper diagnosis of [plaintiff] and the appropriate standard of 18 care for psychiatrists . . . .” Id. at 94. The court further 19 remarked that, 20 21 22 23 24 25 psychiatrist may be appointed to Id. at 92. The review all We note that under the Celotex standard, one might argue that summary judgment may be granted without this proof in light of the fact that Smith bears the burden of proof on this issue at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, we believe it would be incongruous to deny the nonmoving party the ability to present the necessary proof to withstand a motion for summary judgment-as the district court did here by denying the Rule 706 motion-and then grant summary judgment against the nonmoving party simply because the nonmoving party has failed to come forward with such proof. 26 17 of 1 Id. at 93 n.4. 2 The Seventh Circuit also considered whether it was appropriate 3 to appoint a neutral expert witness in a claim alleging deliberate 4 indifference to a serious medical need. Ledford v. Sullivan, 5 105 F.3d 354, 359-60 (7th Cir. 1997). Plaintiff in Ledford alleged 6 that 7 officials confiscated his psychotropic drugs upon transfer to a new 8 facility. Id. at 355-56. The Circuit concluded that the district 9 court did not abuse its discretion when it declined to appoint an 10 expert witness because, “The jury was capable of evaluating the 11 defendants’ subjective belief in light of the court’s deliberate 12 indifference definition without the aid of an expert.” Id. at 359. 13 The 14 comprehend whether [plaintiff] had serious medical needs without 15 the 16 conclusion because, under the facts of the case, the jury need not 17 consider “probing, complex questions concerning medical diagnosis 18 and judgment,” as they would in a medical malpractice action. Id. 19 Rather, it held the jury was tasked with a subjective inquiry into 20 the state of mind of the defendants. Id. The Circuit also concluded 21 that an expert was not necessary to determine whether plaintiff had 22 serious medical needs because “[t]he symptoms which [plaintiff] 23 exhibited were not beyond a lay person’s grasp.” Id. at 359-60. his Eighth court aid of Amendment further an rights concluded expert.” Id. were that at the 359. violated jury The when “could court prison likewise reached this 24 The Eleventh Circuit considered a similar case, yet decided, 25 under the facts of that case, that the district court should 26 consider whether appointment of 18 an expert was appropriate. 1 Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996). The plaintiff in 2 Steele was diagnosed with “Adjustment Disorder with Anxious Mood” 3 and was prescribed several psychotropic drugs. Id. at 1267. He was 4 transferred to a new facility where a physician discontinued his 5 medication, allegedly after one cursory exam and after receiving 6 notification from the physicians at the first facility concerning 7 plaintiff’s diagnosis and need for aggressive treatment. Id. at 8 1267-68. 9 appointment of The district court denied plaintiff’s request for an expert witness without any explanation. Id. at 10 1270-71. The Circuit remanded the issue of appointment of an expert 11 witness to the district court and suggested that expert opinion on 12 the standard of psychiatric care and its application “obviously 13 might be important to the finder of fact.”8 Id. at 1271. 14 More recently, the Eleventh Circuit found that the district 15 court did not abuse its discretion when denying a request for 16 appointment of an expert witness in a case alleging deliberate 17 indifference to a serious medical need because the defendant moved 18 for summary judgment on the grounds that she did not have the power 19 to overrule a decision of a superior and not on the grounds the 20 plaintiff did not suffer from a serious medical need or that she 21 was deliberately indifferent to that need. German v. Broward County 22 Sheriff’s 23 (unpub.). Office, 315 Fed. Appx. 773, 778 (11th Cir. 2009) 24 25 26 8 Also, as discussed in the following section, the court considered plaintiff’s indigency to be a factor weighing in favor of appointment of an expert witness. 19 1 In Gavira v. Reynolds, 476 F.3d 940, 941 (D.C. Cir. 2007), the 2 plaintiff brought a medical malpractice claim against oral surgeons 3 who attempted to repair his jaw after it was broken during arrest. 4 Appointed trial counsel in Gavira consulted an expert who found no 5 likely fault in the surgeries. Id. at 945. Further, recent medical 6 tests indicated that plaintiff showed no continuing problems. Id. 7 Based on this evidence, the D.C. Circuit concluded that the 8 district court did not abuse its discretion when declining to 9 appoint an expert witness explaining that, “While it is true that 10 [plaintiff] cannot prevail under District of Columbia law without 11 an expert witness, it is fair to say that [plaintiff]’s claims fail 12 not because of the district court’s refusal to appoint an expert 13 witness but because of his broader failure to adduce any evidence 14 that the claims have merit.” Id. at 946 (citation omitted). 15 This case law provides some guidance as to the circumstances 16 under which a court should consider appointing an impartial expert 17 witness to promote accurate fact finding. The touchstone is that 18 expert witnesses should not be appointed under Rule 706 where not 19 necessary 20 comprehend a material issue in a case.9 Further, in order to or significantly useful for the trier of fact to 21 9 22 23 24 25 26 At oral argument, counsel for the U.C. Davis defendants remarked that the case would likely proceed to trial if the court were to appoint an expert or approve a request for payment of expert fees. While counsel was attempting to dissuade the court from allowing such testimony, it appears to this court that counsel missed the point of Rule 706. The Rule is drafted to avoid such a situation where the only reason why a case would not proceed to trial is the presence or absence of an expert witness rather than the merits of a plaintiff’s claims. In effect, counsel’s argument provides significant support to the need for expert testimony in 20 1 demonstrate such necessity, there also must be some evidence, 2 admissible or otherwise, that demonstrates a serious dispute that 3 could be resolved or understood through expert testimony.10 4 3. Ability of Party to Procure Expert Testimony 5 It is clear that expert witnesses should only be appointed 6 where doing so is necessary to ensure accurate factfinding. Such 7 is the threshold issue. Nonetheless, courts consider other factors 8 when deciding if appointment is appropriate. The first, and most 9 obvious, is whether testimony from the parties’ experts is 10 sufficient to reveal the facts. Federal Practice and Procedure 11 § 6304 (3d ed. Supp. 2011). Expert witnesses are rarely appointed 12 13 this case. 10 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants rely on Hannah v. United States, 523 F.3d 397 (5th Cir. 2008), for the proposition that the court may not appoint an expert under Rule 706 just because plaintiff will lose without expert testimony. In Hannah, a federal prisoner brought a medical malpractice claim under the Federal Tort Claims Act for alleged negligence arising out of treatment he received while suffering from a sinus infection. Id. at 599. The Circuit concluded that the district court did not abuse its discretion when denying plaintiff’s request for an expert witness and then granting summary judgment to defendants because plaintiff failed to present expert testimony on the standard of care. Id. at 601. The Circuit explained that the district court provided a reasoned denial of the request and that plaintiff’s request failed to comply with its scheduling orders. Id. at 601. The court makes no reference to the evidence, if any, that plaintiff was able to produce in support of his claim. Ultimately, this decision does not provide sufficient detail or explanation for its finding that the district court did not abuse its discretion. It could very well be that the plaintiff was, like the plaintiff in Gavira, unable to produce any evidence that demonstrated that an expert witness would actually reveal something about the case. To the extent Hannah is in conflict with the weight of appellate authority suggesting that courts should consider appointing expert witnesses when, through the course of litigation, it becomes apparent that unbiased expert testimony will aid the trier of fact in making an accurate factual determination, however, this court declines to follow its reasoning. 21 1 under Rule 706 because the adversary system is usually sufficient 2 to promote accurate factfinding. See id. 3 Where a plaintiff is an indigent prisoner proceeding pro se, 4 however, the adversary system is more likely to fail in its pursuit 5 of accurate factfinding. Several courts have considered these 6 issues. 7 strongly suggested that the district court consider appointing an 8 expert witness on remand not only because the psychiatric standard 9 of care was at issue, but also because, “If, as he claims, 10 [plaintiff] is indigent, this could provide further reason to 11 appoint an expert to avoid a wholly one-sided presentation of 12 opinions on the issue.” 87 F.3d at 1271. Further, in Smith, the 13 Eighth Circuit expressed some hesitance in denying the nonmoving 14 pro se prisoner the ability to present necessary proof and then 15 granting summary judgment for failure to present such proof. 919 16 F.2d at 93 n.4. As discussed above, in Steele, the Eleventh Circuit 17 The D.C. District Court further expounded on this general 18 concept in Applegate v. Dobrovir, Oakes & Gebhardt. 628 F. Supp. 19 378 (D.D.C. 1984). While the court ultimately determined that 20 appointment of an expert witness was not warranted in that case, 21 the court’s decision turned on findings that plaintiff was not 22 indigent, did not claim that he failed to obtain an expert because 23 he could not afford one, and did not demonstrate that his failure 24 to obtain an expert was due to factors outside the merits of his 25 case. Id. at 383. The court noted that, “It may well be that . . 26 . plaintiffs suing doctors have difficulty persuading other doctors 22 1 to testify against a colleague for fear of reprisal . . . ,” but 2 such factors were not present in that case. It is important to note 3 that the plaintiff in Applegate was not a prisoner, but rather a 4 former client suing his lawyer. Thus, the court’s observation about 5 fear of reprisal in the medical profession did not address the 6 impact of such a fear where the plaintiff was a convicted criminal. 7 One can only postulate how such a fear of reprisal would be 8 enhanced for a medical expert to testify against a colleague who 9 treated a patient belonging to a most unpopular class. 10 The U.C. Davis defendants repeatedly assert that if plaintiff 11 had a strong case, he would be able to obtain expert testimony on 12 a contingency fee basis. These defendants appear to be overlooking 13 several significant factors. First, successful Eighth Amendment 14 claims rarely generate large damage awards, as do some medical 15 malpractice claims brought by individuals who are not convicted 16 criminals. Second, the Prison Litigation Reform Act significantly 17 reduced the amount of attorneys’ fees recoverable by any actions 18 brought 19 requirements that, (1) the amount of the fee is proportionately 20 related to the court ordered relief for the violation; (2) the 21 award of attorneys fees may be no greater that 150 percent of the 22 judgment; (3) the plaintiff must pay a portion of the judgment not 23 to exceed 25 percent as attorneys fees; and (4) hourly rates for 24 attorneys are limited to 150 percent of the hourly rate established 25 for court-appointed counsel. Id. In light of these barriers, it 26 appears quite likely that even a prisoner with the strongest claims by prisoners. 42 U.S.C. 23 § 1997e(d). Of note are 1 may nonetheless be unable to acquire counsel on a contingency 2 basis, who would then be able to hire an expert witness on his 3 behalf. 4 Further, incarceration places additional barriers upon a 5 plaintiff litigating deliberate indifference to a serious medical 6 need. For example, in Smith, the Eighth Circuit suggested that the 7 district court consider appointing an expert witness to opine on 8 the standard of care and its application to the case or “obtain an 9 additional opinion from . . . [plaintiff]’s previous physician . 10 . . concerning the nature of his prior treatment and the necessity 11 of continuing an medication.” 919 F.2d at 94. Ordinarily, an 12 individual who is not incarcerated can obtain such information from 13 prior medical providers or even seek a second opinion, which, in 14 some cases, can be sufficient to present a triable question and to 15 promote accurate factfinding. 16 Recently, this court considered such a case. In Nelson v. 17 Runnells, a prisoner brought a claim for deliberate indifference 18 to a serious medical need where the plaintiff alleged that he 19 received no care after a physical assault, which occurred in August 20 2005. No. 2:06-cv-1289 LKK KJN P, 2010 WL 3238925, at *13 (E.D. 21 Cal. Aug. 12, 2010) findings & recommendations adopted by 2010 WL 22 3745129 (E.D. Cal. Sept. 16, 2010). Specifically, he alleged that 23 the defendant medical providers were deliberately indifferent to 24 his serious medical need because of their failure to refer him for 25 x-rays to treat his broken nose, possibly cracked cheekbone, and 26 blurred vision. Id. On February 23, 2010, the plaintiff was able 24 1 to obtain an x-ray of his nose because he had earlier been released 2 from prison. Id. This report indicated that he suffered from a 3 deformity of the nasal bone, which “may be from an old fracture.” 4 Id. As a result of this report, the Magistrate Judge recommended, 5 and this court adopted, the following analysis: 6 There is no evidence that plaintiff suffered a serious injury to his nose prior to the 2005 assault. Thus, the 2010 x-ray demonstrates that the injury plaintiff sustained in the assault was “serious.” Plaintiff alleges that the injury caused him substantial pain, which is supported by his prescriptions for tylenol and ibuprofen, and the x-ray demonstrates permanent disfigurement. Significantly, defendants have not submitted any evidence or statement to refute plaintiff's supported allegations that his nose was broken in the assault and that defendants did not respond appropriately. Plaintiff's 2010 x-ray thus raises a material issue of fact whether defendants were deliberately indifferent in failing to x-ray plaintiff's nose and treat the injury differently. . . . For these reasons, the court recommends denying defendants' motion for summary judgment on the substance of plaintiff's Eighth Amendment claim alleging deliberate indifference to his serious medical needs. 7 8 9 10 11 12 13 14 15 16 Id. at *16. 17 While a party’s ability to obtain independent opinion is not 18 determinative in and of itself under Rule 706, it nonetheless is 19 a 20 appointment of a neutral expert is appropriate. Courts should, 21 thus, also consider whether a party’s capacity to acquire expert 22 testimony is limited due to factors outside of his control, 23 including whether he is indigent or incarcerated. Specifically, 24 courts should look to whether these factors prevent a party from 25 presenting a potentially meritorious case. 26 /// factor that courts should consider 25 when determining if 1 4. Due Process Concerns 2 Another factor that appears to this court to be relevant to 3 a determination of whether appointment of an expert witness is 4 appropriate is the nature of the claim brought by a plaintiff. The 5 Supreme Court has recognized that due process requires the state 6 to provide prisoners with “[t]he tools . . . that the inmates need 7 in order to attack their sentences, directly or collaterally, and 8 in order to challenge the conditions of their confinement.” Lewis 9 v. Casey, 518 U.S. 343, 355 (1996). These required tools are in 10 contrast to the “[i]mpairment of an other litigating capacity [such 11 as, the ability to bring shareholder derivative actions and slip- 12 and-fall claims as] simply one of the incidental (and perfectly 13 constitutional) consequences of conviction and incarceration.” Id. 14 (emphasis in original). Appeals of criminal convictions and civil 15 rights actions are entitled to this privileged position because 16 fundamental, Constitutional rights are at stake. While clearly not 17 a necessary and sufficient factor under Rule 706, it appears to 18 this 19 significance of the rights at stake when deciding if appointment 20 of an expert is proper.11 court that district courts should also consider the 21 11 22 23 24 25 26 As discussed in footnote 6, the parties agree that the in forma pauperis statute, 28 U.S.C. § 1915, does not authorize the court to appoint an expert for plaintiff’s benefit to be paid by the court. See Hannah, 523 F. 3d at 601 (District courts do not have the power to appoint expert witnesses under Section 1915.); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988) (same). The reasoning behind these decisions is that Section 1915 only authorizes the court to direct payment for three specific expenses, which do not include expert witness costs. 28 U.S.C. § 1915(c). As mentioned in footnote 5, the 26 1 5. Summary 2 Foremost, it appears to this court to be required that any 3 denial of an explicit request for appointment of an expert witness 4 under Rule 706 requires a reasoned explanation for such a denial. 5 The explanation need not be extensive. While it may be appropriate 6 to deny a request made at a point in litigation where evidence is 7 not being evaluated as not being necessary at the time,12 when the 8 court or the trier of fact is evaluating evidence,13 courts cannot 9 rely on such a minimal explanation. Rather, in those circumstances 10 where the timing is appropriate, the court should discuss the 11 merits of the request. 12 The court now turns to the substantive factors that courts 13 should consider when determining whether to appoint an expert 14 witness under Rule 706. Neither the evidentiary rule nor the cases 15 16 17 18 19 20 court does not reach the question of whether the Constitution requires the appointment of expert witnesses in cases similar to the case at bar because it decides this case under the policies guiding Rule 706. Further, plaintiff does not argue that a neutral expert under Rule 706 would be inadequate to protect his Constitutional rights. The court similarly cannot envision any arguments in support of that proposition. Under these circumstances, the court does not determine whether any authority, including that derived from plaintiff’s Constitutional rights, exists for it to appoint an expert for an indigent party’s benefit. 21 12 22 23 24 25 26 See Estrada v. Rowe, No. C 08-2801 MMC (PR), 2011 WL 249453, at *5 (N.D. Cal. Jan. 25, 2011) (finding that “until the Court has had the opportunity to review the arguments and evidence submitted by the parties on summary judgment, no determination can be made that the issues are so complex as to require the testimony of an expert to assist the trier of fact”). 13 The most common examples of such periods of litigation arise are during motions for preliminary injunctions, motions for summary judgment, and trial. 27 1 interpreting it set forth a standard for application of the rule. 2 Instead, this court notes several concerns regularly discussed by 3 the Courts of Appeal on the application of Rule 706: (1) 4 Whether expert testimony is necessary or significantly 5 useful for the trier of fact to comprehend a material 6 issue in a case. (2) 7 Whether the moving party has produced some evidence, 8 admissible or otherwise, that demonstrates a serious 9 dispute that could be resolved or understood through expert testimony. 10 (3) 11 Whether certain circumstances or conditions of a party 12 limit the effectiveness of the adversary process to 13 result in accurate factfinding. (4) 14 Whether the legal basis of plaintiff’s claim entitles him to special consideration by the courts. 15 16 It is this court’s opinion that these factors should be considered 17 by courts in exercising their discretion under Rule 706. Moreover, 18 sponte it also whether should consider would promote accurate 20 factfinding 21 evaluated.14 See Fed. R. Evid. 706(a) (“The court may on its own 22 motion . . . enter an order to show cause why expert witnesses stage witness courts sua any expert that 19 at an appears of litigation where evidence is 23 24 25 26 14 The court declines to adopt plaintiff’s proposal to conduct such an evaluation at case management. This factually intensive test is most appropriately applied when the court is determining the sufficiency of evidence and not based upon the mere allegations of a complaint. 28 1 should not be appointed . . . .”). While the court assumes such sua 2 sponte motions will be rare, they should not be nonexistent. Making 3 such evaluations does appear to comport with the purpose of Rule 4 706 in allowing motions to be brought by the court and its overall 5 goal to promote accurate factfinding. 6 C. Burden to Defendants 7 A common theme throughout defendants’ briefs is that applying 8 Rule 706 to claims like Gorton’s would be unduly burdensome to the 9 state and to private defendants performing state functions. While 10 the court cannot speak to every potential application of Rule 706, 11 it does refer defendants to the appendix in which the court has 12 attached 13 plaintiff bringing a similar claim to survive summary judgment. See 14 Watson v. Torruella, No. CIV S-06-1475 LKK EFB P, 2009 WL 32246805 15 (E.D. Cal. Oct. 7, 2009). Regardless, however, any concerns that 16 defendants have with the costs of Rule 706 are problems with the 17 rule, which this court is in no position to ignore. a four-page 18 D. 19 Plaintiff declaration that was sufficient for a Application to Instant Case has presented evidence of what appear to be 20 significant delays in the treatment of his kidney disorders. See 21 August 22 Plaintiff has diligently attempted to obtain and present evidence 23 of the appropriate standard of care and the application of that 24 standard to this case. (See Ex. A to Pl.’s Opp’n.) This includes 25 presentation of articles on the diagnosis and treatment of his 26 illnesses. 11, 2011 Findings and Recommendations 29 (Doc. No. 75). 1 Moreover, the court is informed by its experience presiding 2 over Coleman v. Brown, 2:90-cv-520-LKK-JFM (E.D. Cal), and the 3 Three Judge Court convened in Coleman and Plata v. Brown, C01-1351 4 (N.D. Cal). The order of the Three Judge Court was recently 5 affirmed by the Supreme Court. Brown v. Plata, ___ U.S. ____, 6 131 S.Ct. 1910 (2011). The Supreme Court cited with approval 7 findings of the Three Judge Court concerning California’s prison 8 health care during the very time that Gorton allegedly suffered 9 delays in medical treatment. Specifically, the Court concluded 10 that, “The number of staff is inadequate, and prisoners face 11 significant delays in access to care.” Id. at 1925. It continued 12 to provide several examples of such delays. 13 16 A prisoner with severe abdominal pain died after a 5–week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8–hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.” 17 Id. quoting California Prison Health Care Receivership Corp., 18 K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). 19 The Court continued to cite with approval testimony of “Doctor 20 Ronald Shansky, former medical director of the Illinois state 21 prison 22 prisoners. He concluded that extreme departures from the standard 23 of care were ‘widespread,’ . . . and that the proportion of 24 ‘possibly preventable or preventable’ deaths was ‘extremely high.’” 25 Id. (citations to record omitted). It further referenced statistics 26 from 2006 and 2007 that “a preventable or possibly preventable 14 15 system, [who] surveyed 30 death reviews for California 1 death occurred once every five to six days.” Id. at 1926 n.4. 2 Finally, the Court affirmed that, “Many more prisoners, suffering 3 from 4 prolonged illness and unnecessary pain.” Id. at 1925-26. All the 5 above demonstrates that the claims of delayed or absent treatment 6 may well be justified and, in appropriate cases, may warrant 7 independent review. While none of the above demonstrates that a 8 case was below the level of adequate care, they, alone, suggest the 9 possibility. Taken with the evidence produced by plaintiff, they 10 severe but not life-threatening conditions, experience demonstrate the need for an expert. 11 Thus, absent expert testimony, the court, as evaluator of fact 12 at summary judgment, cannot determine whether there is evidence 13 that defendant’s treatment of plaintiff fell so far below the 14 standard of care that a jury could find that defendants were 15 subjectively aware of risk of harm to plaintiff. Accordingly, if 16 plaintiff were to proceed in pro per, the court would issue an 17 order to show cause on why an impartial expert witness should not 18 be appointed in this case under Rule 706. 19 At oral argument, however, counsel for plaintiff represented 20 that they intend to continue representing Gorton beyond their 21 limited appointment. Pursuant to General Order No. 230, appointed 22 counsel in section 1983 cases may move for reimbursement of expert 23 witness costs. Plaintiff’s counsel further represented that they 24 would prefer to seek expert testimony under General Order No. 230 25 than under Rule 706. Thus, the court orders plaintiff to request 26 /// 31 1 reimbursement of expert fees under General Order No. 230 within 2 sixty (60) days. 3 IV. CONCLUSION 4 For the foregoing reasons, the court ORDERS as follows: 5 (1) The court finds that the Magistrate Judge’s order 6 denying plaintiff’s request for appointment of an expert 7 witness 8 erroneous. 9 (2) under Rule 706 (Doc. No. 69) was clearly Plaintiff shall submit an ex parte request to incur 10 costs and request for payment of expert witness fees 11 pursuant to General Order No. 230 within sixty (60) days 12 of the issuance of this order. Plaintiff may file the 13 request under seal. 14 (3) The court no longer refers this case to the Magistrate 15 Judge. All future non-discovery motions shall be filed 16 before this court. 17 (4) The court vacates all previously scheduled dates and 18 sets a scheduling conference in the above captioned case 19 for September 19, 2011. The parties shall file status 20 reports fourteen (14) days prior to the conference. 21 IT IS SO ORDERED. 22 DATED: June 29, 2011. 23 24 25 26 32 APPENDIX Declaration of James E. Daly, D.O., M.S., Retired in Support of Opposition to Motion for Summary Judgment Watson v. Torruella, 2:06-cv-1475 LKK EFB (E.D. Cal.)

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