Dearinger v. Eli Lilly and Company

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DAVID J. DEARINGER, et al., CASE NO. C21-0060-JCC 10 Plaintiffs, ORDER 11 v. 12 ELI LILLY AND COMPANY, 13 Defendant. 14

15 This matter comes before the Court on Plaintiff David Dearinger’s motion to appoint 16 counsel (Dkt. No. 19). Having considered the motion and the relevant record, the Court DENIES 17 the motion. 18 The appointment of counsel for a pro se litigant in a civil case “is a privilege and not a 19 right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). A court may 20 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) but should do so 21 “only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 22 When determining whether exceptional circumstances justify the appointment of counsel, the 23 Court considers “the likelihood of success on the merits and the ability of the petitioner to 24 articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 25 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 26 (9th Cir. 1983)). 1 Mr. Dearinger argues there are exceptional circumstances here because he is paralyzed on 2 his left side and can type with only two fingers on his right hand, which allows him to type, at 3 the fastest, at 15 words per minute. (Dkt. No. 19 at 3–4.) In addition, he alleges that the 4 Snohomish County Law Library, Edmonds Community College Library, and the Gallagher Law 5 Library at the University of Washington are unavailable to him due to COVID-19 and he is 6 unfamiliar with several of the legal doctrines Eli Lilly cited in its motion to dismiss. (Id. at 4.) 7 Pharmaceutical product liability claims are among the most complex claims that the 8 Court sees, and the Court has no doubt that Mr. Dearinger’s paralysis and his limited access to 9 legal materials is impacting his ability to litigate this case. Despite these limitations, Mr. 10 Dearinger has done an admirable job representing himself. His filings are much clearer than the 11 typical pro se litigant, and, in some cases, they are clearer than filings by lawyers. Further, after 12 filing this motion, Mr. Dearinger filed a nine-page motion to certify an issue related to the 13 learned intermediary doctrine to the Washington Supreme Court. (See Dkt. No. 20.) That motion 14 contains several relevant citations, suggesting that Mr. Dearinger has been able to access legal 15 materials despite his limited access to the public libraries. Because Mr. Dearinger has shown that 16 he can articulate his claims clearly despite his pro se status, the Court does not find appointment 17 of counsel appropriate here. 18 Another significant factor motivating the Court’s decision is that the Court is doubtful 19 that an attorney will take Mr. Dearinger’s case. Although courts often refer to motions under 28 20 U.S.C. § 1915(e)(1) as motions to appoint counsel, the statute does not actually authorize the 21 Court to force a lawyer to take a case. Nor does the Court have staff attorneys standing by to 22 represent pro se litigants. Instead, the Court may only “request” that an attorney represent an 23 indigent litigant. 28 U.S.C. § 1915(e); see also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 24 U.S. 296, 307 (1989) (holding that § 1915(e) authorizes “courts to ask but not compel lawyers to 25 represent indigent litigants”). The Court has adopted a plan for recruiting counsel to represent 26 indigent litigants pro bono, but only plaintiffs in “civil rights actions” are eligible. See W.D. 1 Wash. General Order 16-20, https://www.wawd.uscourts.gov/sites/wawd/files/GO16- 2 20AmendedProBonoPlan.pdf. A private product liability action likely does not qualify as a civil 3 rights action. Even if it did, Mr. Dearinger reports that he has contacted several attorneys with 4 product liability experience over the past several months, but they have all declined to take his 5 case. (Dkt. No. 19 at 2–3.) Given that several attorneys with relevant experience have declined to 6 take his case despite the prospect of potentially recovering a contingency fee, the Court is 7 doubtful that an attorney will volunteer to take the case for free. 8 Although the Court denies the motion to appoint counsel, the Court will afford Mr. 9 Dearinger additional time to respond to Eli Lilly’s motion to dismiss in light of his physical 10 limitations and his limited access to legal materials. Accordingly, the Court EXTENDS Mr. 11 Dearinger’s deadline to respond to Eli Lilly’s motion to dismiss until Tuesday, June 1, 2021 and 12 DIRECTS the Clerk to renote the motion for consideration on Friday, June 4, 2021. 13 14 DATED this 20th day of May 2021. A 15 16 17 John C. Coughenour 18 UNITED STATES DISTRICT JUDGE

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