United States District Court, W.D. Washington, Tacoma
Richard Creatura, United States Magistrate Judge.
is plaintiff's motion to appoint expert witness. Dkt. 37.
Because a medical expert is not necessary at this stage of
litigation, the Court denies plaintiff's motion without
prejudice. The Court also directs defendants to file (under
seal) the last known business or residential address for
defendant Wentworth, who has not yet returned a waiver of
service, on or before September 15, 2019.
Motion to Appoint Expert Witness (Dkt. 37)
requests that the Court appoint his treating orthopedic
surgeon to support his claims that defendants “failed
to meet the ADA process.” Dkt. 37 at 4. Plaintiff
alleges that the expert witness will assist the Court or jury
in understanding the issue. Dkt. 37 at 8. In the alternative,
plaintiff argues that “the prison officials [should]
pay the entire cost of the expert as [he is] indigent”
or plaintiff pay the costs of his expert witness and counsel
from any relief. Dkt. 37 at 8.
forma pauperis statute, 28 U.S.C. § 1915, does not
provide for the payment of fees and expenses for witnesses,
see Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.
1993), or for the waiver of such fees and expenses. See
Hadsell v. Comm'r Internal Revenue Serv., 107 F.3d
750, 752 (9th Cir. 1997). However, Federal Rule of Evidence
706 allows the court to appoint a neutral expert.
Students of Cal. Sch. For the Blind v. Honig, 736
F.2d 538, 549 (9th Cir. 1984), vacated on other
grounds, 471 U.S. 148 (1985). The determination to
appoint an expert rests solely in the court's discretion
and the complexity of the matters to be determined and the
need for neutral expert review. See Leford v.
Sullivan, 105 F.3d 354, 358-59 (9th Cir. 1997).
“Appointment [of expert witnesses] may be appropriate
when ‘scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or decide a fact in issue....' ” Levi
v. Director of Corrections, 2006 WL 845733 (E.D. Cal.
March 31, 2006) (citing Ledford v. Sullivan, 105
F.3d 354, 358-59 (7th Cir. 1997). The Ninth Circuit has found
that, while no funds have been provided by law to compensate
an expert witness in civil rights cases, Rule 706(c)(2),
“in an appropriate case, permits the court to apportion
all the cost to one side.” See McKinney v.
Anderson, 924 F.2d 1500, 1511 (9th Cir.), vacated
and remanded on other grounds, 502 U.S. 903 (1991).
“Otherwise, we are faced with an inflexible rule that
would prevent the district court from appointing an expert
witness whenever one of the parties in an action is indigent,
even when the expert would significantly help the
issue in this case is whether defendants acted with
deliberate indifference to plaintiff's serious medical
needs when they determined that plaintiff did not need
surgery or certain accommodations. The Court acknowledges
that plaintiff's incarceration places additional barriers
on litigating this matter, and plaintiff's ability to
afford or acquire expert witness testimony should not prevent
him from presenting a potentially meritorious case. See
Gorton v. Todd, 793 F.Supp.2d 1171, 1184 (E.D. Cal.
2011). Nevertheless, at this stage of litigation, where
evidence is not yet being evaluated, the Court cannot yet
determine whether the issues are so complex as to require the
testimony of an expert. See Estrada v. Rowe, 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”). Accordingly, the Court denies
plaintiff's motion for appointment of an expert witness
(Dkt. 37) without prejudice to plaintiff renewing such
motion, or the Court sua sponte considering such an
appointment, at a later stage of litigation.
13, 2019 the Court directed service of plaintiff's
complaint. Dkt. 21. Waivers of service were due July 19,
2019. See docket entry dated June 13, 2019. To date,
defendant Wentworth has not returned a waiver of service.
See Dkt. Defense counsel has not appeared on behalf
of defendant Wentworth. See Dkt. In his complaint,
alleges that defendant Wentworth is a physician. Dkt. 19.
court has no jurisdiction over defendant Wentworth until he
or she has been properly served under Fed.R.Civ.P. 4.
Direct Mail Specialists, Inc. v. Eclat Computerized
Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Under
Rule 4(c)(2), the Court may order that personal service be
made by a United States marshal. However, in this district,
the marshals do not attempt personal service upon a defendant
unless mail service is unavailing. See Local Rule
4(c). If defendants are in possession of the last known
business or residential address of defendant Wentworth,
defendants are ordered to submit such address(es) to the
Court under seal on or before September 15,
2019. so that the Clerk may attempt to effect
service. This solution alleviates two concerns involving
prisoner litigation: (1) the security risks inherent in
providing prisoners with addresses of people formerly
employed by the state; and (2) reducing the problems
prisoners sometimes encounter when they are attempting to
access information through the government. Sellers v.
United States, 902 F.2d 598, 602-603 (7th Cir. 1990).
Defendant Wentworth may also satisfy this order by filing a
waiver and by having counsel enter a notice of appearance on
his or her behalf. All service documents with said
address(es) shall also be filed under seal.
above stated reasons, plaintiff's motion to appoint
expert witness (Dkt. 37) is denied without prejudice.
Defendants are directed to provide the last known address for