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Cepero v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

June 26, 2019

BILLY CEPERO, Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

          ORDER (DOCKET NOS. 137, 141)

          NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiff's motion for court-appointed experts. Docket No. 137. The Court has considered Plaintiff's motion, Defendants' response, and Plaintiff's reply. Docket Nos. 137, 142, 146. Also pending before the Court is Plaintiff's motion to strike non-retained experts of Defendants. Docket No. 141. The Court has considered Plaintiff's motion, Defendants' response, and Plaintiff's reply. Docket Nos. 141, 143, 137. The motions are properly decided without a hearing. See Local Rule 78-1.

         I. BACKGROUND

         On November 7, 2011, the Court ordered that Plaintiff may proceed on his claims of excessive use of force and assault and battery related to his arrest on August 26, 2009. Docket No. 9 at 10. On November 27, 2018, Plaintiff filed an amended complaint alleging excessive use of force, assault and battery, intentional infliction of emotional distress, negligence, and a civil rights violation under § 1983. Docket No. 125 at 6-12. Plaintiff previously brought a motion to appoint expert on July 10, 2018, which the Court denied without prejudice on August 2, 2018. Docket Nos. 108, 117. On April 17, 2019, Defendants disclosed their initial expert witnesses and reports. See Docket No. 141-1. Defendants retained a medical expert to review limited medical records, photos of wall damage that occurred during Plaintiff's arrest, and transcripts from Plaintiff's trial in state court. Id. at 20-23. Defendants' disclosure also included Las Vegas Metropolitan Police Department (“LVMPD”) officers and/or 30(b)(6) witnesses, specifically naming officers not named as Defendants. Id. at 2-3. On April 15, 2019, Plaintiff disclosed his treating physicians as non-retained treatment provider experts. Docket No. 141-2 at 7-11.

         II. STANDARDS

         A. Motion for Court-Appointed Experts

         The in forma pauperis statute, 28 U.S.C. § 1915, does not provide for the appointment of expert witnesses to aid prisoners or other indigent litigants. Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008) (quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir.1995)); see also Faletogo v. Moya, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013). Instead, the district court has discretion to appoint an expert pursuant to Rule 706(a) of the Federal Rules of Evidence which reads, in part, “[t]he court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed." Lopez v. Scribner, 2007 WL 1215420 (E.D. Cal. Apr. 24, 2007) (citing Fed.R.Evid. 706(a); see also Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.1999)).

         A Rule 706 expert does not serve as an advocate for any party and each party retains the ability to call its own experts. Fed.R.Evid. 706(e). Rule 706 permits the appointment of an unbiased, neutral expert only if the expert's opinion would promote accurate fact finding and only where an expert would be particularly helpful evaluating complex or confusing evidence, such as scientific, technical, or other specialized knowledge. Gorton v. Todd, 793 F.Supp.2d 1171, 1179 (E.D. Cal. June 29, 2011; see also Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The court should also consider whether (1) appointment of an expert will promote accurate factfinding; (2) testimony from the parties' experts is sufficient to reveal the facts; and (3) the claim raises constitutional concerns. Gorton, 793 F.Supp. 2d at 1171, 1182. A court-appointed expert is entitled to reasonable compensation and, in civil cases, the compensation is paid by the parties in proportion and at such time as the court directs; however, where one party is indigent, the court may apportion all the cost to one side. O'Neill v. Bannister, 2012 WL 12542743, at *2 (D. Nev. Aug. 29, 2012).

         In asking the Court to appoint experts in the instant case, Plaintiff submits that expert testimony is required regarding his alleged not-readily observable injuries such as head trauma, neck and back pain, grief, and headaches. Docket No. 137 at 12. Plaintiff additionally submits that expert opinion is needed to resolve the factual dispute regarding the source and cause of the injuries. Id. Plaintiff further submits that expert testimony is necessary regarding the medical treatment he received or should have received, and the value of such treatment. Id. at 13. Finally, Plaintiff submits that these issues constitute complex medical issues and present a serious dispute that can only be resolved or understood through expert testimony. Id.

         In response, Defendants submit that the circumstances of this case do not present exceptional or compelling situations warranting the Court's appointment of an expert. Docket No. 142 at 10-11. Defendants further submit that Plaintiff's motion is untimely, as the deadline to disclose experts expired on April 17, 2019. Id. Additionally, Defendants submit that Plaintiff's motion seeks an expert to support his claim, which falls outside the scope of Rule 706, and that the Court should not partake in the business of advocating Plaintiff's case for him. Id. at 11-12. Defendants submit that the in forma pauperis statute, 28 U.S.C. § 1915, does not entitle the expenditure of public funds for witnesses, and that expending public funds for an expert exposes the public to a costly burden. Id. at 12-13. Defendants also submit that Plaintiff's motion fails to comply with the procedural processes set forth in Rule 706. Id. at 13. Finally, Defendants submit that Plaintiff's claims are focused on subjective analysis which does not involve the evaluation of complex scientific evidence; therefore, a Rule 706 expert is not appropriate in this case. Id. at 14.

         In reply, Plaintiff submits that he seeks the appointment of a neutral expert and acknowledges that this appointment is at the discretion of the Court. Docket No. 146 at 8, 10-11, 14. Plaintiff submits that his medical treatment providers are insufficient as expert witnesses because they are considered non-retained experts and, therefore, cannot opine on a variety of issues, including the opinions of other treating physicians, causation, future damages, hypotheticals, the reasonableness and necessity of other treatments, or the fees and costs associated with other treatments. Id. at 9-10. Plaintiff additionally submits that his motion is timely because he relied on Defendants' representations that they were not retaining experts and were not challenging causation; however, once Defendants disclosed their experts on the expert disclosure deadline, Plaintiff renewed his motion. Id. at 11. Plaintiff also submits that, because an injury is a subjective condition, expert opinion is required to establish a causal connection between the incident and the injury. Id. at 12. Plaintiff further submits that Defendants' concerns over the potential cost of appointing experts in prisoner's rights cases is unwarranted considering the fact thar only a paucity of cases endure to the point of appointing experts. Id. at 14-15. Finally, Plaintiff submits that he has followed the correct procedure to ask the Court to appoint a Rule 706 expert. Id. at 16.

         The Court finds that, under the circumstances of this case, Plaintiff's motion is timely. The Court further finds that the legal issues involved in this action are not particularly complex and, therefore, the appointment of an expert to promote accurate factfinding is not necessary. See Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (finding that district court decision to appoint independent expert to assist court in evaluating contradictory evidence about elusive disease of unknown origin was appropriate). The Court finds that the testimony of a neutral expert is not required to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a). Further, the Court finds that the parties' disclosed experts are sufficient to evaluate the facts of this case. Accordingly, Plaintiff's motion for court-appointed experts, Docket No. 137, is DENIED.

         B. Motion to Strike Non-Retained Experts of Defendants

         Rule 26(a)(2) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” See Fed. R. Civ. P. 26(a)(2). A non-retained expert witness, who is not required to provide an expert report, may testify as both a fact witness and an expert witness under ...


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