O'Brien v. Saha

Opinion

1 2 3 4 5 6 7 8 9 12 13 KORY T. O’BRIEN, Case No.: 19-cv-01957-JLS (JLB)

14 Plaintiff, ORDER: 15 v. (1) DENYING PLAINTIFF’S 16 SAJIB SAHA, et al., MOTION FOR APPOINTMENT OF 17 Defendants. A MEDICAL EXPERT [ECF No. 16];

18 (2) GRANTING PLAINTIFF’S SCHEDULING ORDER [ECF No. 20 20]; AND 21 (3) GRANTING PLAINTIFF’S 22 MOTION FOR CONTINUANCE 23 UNDER RULE 56 [ECF No. 22] 24 25 Before the Court is a motion for appointment of a medical expert filed by Plaintiff 26 Kory T. O’Brien (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, in 27 which Plaintiff seeks the appointment of a medical expert to opine on the issue of “whether 28 Plaintiff’s chronic disease was and is accompanied by substantial pain.” (ECF No. 16.) 1 Also before the Court are Plaintiff’s motions to modify the scheduling order and for a 2 continuance. (ECF Nos. 20, 22.) For the reasons set forth below, the Court DENIES 3 Plaintiff’s motion for appointment of a medical expert, GRANTS Plaintiff’s motion to 4 modify the scheduling order, and GRANTS Plaintiff’s motion for a continuance. 6 A. Background 7 In his complaint, Plaintiff alleges that he was diagnosed with a serious medical need 8 while incarcerated: degenerative disc disease (“DDD”).1 (ECF No. 1 at 3–6.) Plaintiff 9 alleges his DDD is a chronic condition that causes him substantial pain, including severe 10 neuropathic pain, and significantly impacts his daily activities. (Id.) In May 2017, Plaintiff 11 underwent an MRI, which found that Plaintiff had “mild degenerative changes with loss of 12 disc space height and disc protrusion at L5-S1 mild neural foraminal narrowing at lumbar 13 levels.” (Id. at 5.) Plaintiff further alleges that Defendants Sajib Saha, David Clayton, and 14 Margaret Deel (collectively, “Defendants”), all doctors who worked at RJD for the 15 California Department of Corrections and Rehabilitation (“CDCR”), were aware of 16 Plaintiff’s serious medical need and Dr. Saha and Dr. Clayton prescribed him pain 17 medications for his DDD. (Id. at 2–6.) 18 Plaintiff alleges that in May/June 2019, Defendants ceased all medication prescribed 19 to Plaintiff to help control his pain and he is now in “sever[e] intractable chronic pain” and 20 cannot walk. (Id. at 6–8.) Specifically, on May 20, 2019, Dr. Saha ordered that Plaintiff’s 21 morphine be tapered off. (Id. at 7, 13.) Further, on May 29, 2019, Dr. Clayton ordered the 22 discontinuation of his neurological medication, gabapentin. (Id. at 6–7.) Prior to the 23 discontinuation of his medication, Plaintiff’s DDD was well controlled with pain 24 25 26 1 At the time his complaint was filed, Plaintiff was incarcerated at Richard J. 27 Donovan Correctional Facility (“RJD”) and all incidents alleged in the complaint took place at RJD. (ECF No. 1 at 1.) In or around January 2020, Plaintiff was transferred to 28 1 medication and he was able to play soccer. (Id. at 7–8.) Plaintiff seeks relief in the form 2 of “recommended treatment for sever[e] pain by hospital,” which is presumably 3 gabapentin. (Id. at 7, 9, 18.) 4 B. Legal Standard 5 Under Federal Rule of Evidence 706, a court has discretion to appoint an expert 6 witness on its own motion or pursuant to the motion of any party to the action. Fed. R. 7 Evid. 706(a); Gorton v. Todd, 793 F. Supp. 2d 1171, 1178 (E.D. Cal. 2011) (“The decision 8 of whether to appoint an expert witness under Rule 706 is discretionary.”); see also Walker 9 v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) 10 (finding the district court did not abuse its discretion in appointing an independent medical 11 expert to help evaluate evidence under Rule 706). “A Rule 706 expert typically acts as an 12 advisor to the court on complex scientific, medical, or technical matters.” Armstrong v. 13 Brown, 768 F.3d 975, 987 (9th Cir. 2014). Rule 706 “only allows a court to appoint a 14 neutral expert.” Gorton, 793 F. Supp. 2d at 1177 (citation omitted). In other words, a party 15 may not seek appointment of an expert witness under Rule 706 “for his own benefit.” Id. 16 at 1177 n.6; see also Allen v. Beard, No. 3:16-CV-2713-MMA-KSC, 2018 WL 5819782, 17 at *2 (S.D. Cal. Nov. 7, 2018) (noting the in forma pauperis statute, 28 U.S.C. § 1915, does 18 not authorize the expenditure of public funds for expert witnesses).2 19 “The most important question a court must consider when deciding whether to 20 appoint a neutral expert witness is whether doing so will promote accurate factfinding.” 21 Id. at 1179 (citation omitted). In considering this question, “[t]he touchstone is that expert 22 witnesses should not be appointed . . . where not necessary or significantly useful for the 23

24 25 2 Rule 706(a) permits a “district court to apportion all the cost [of an expert witness] to one side” in an appropriate case, as “when[] one of the parties in an action is 26 indigent” and “the expert would significantly help the court.” McKinney v. Anderson, 924 27 F.2d 1500, 1511 (9th Cir. 1991), vacated on other grounds sub nom., Helling v. McKinney, 502 U.S. 903 (1991), judgment reinstated, 959 F.2d 853 (9th Cir. 1991), aff’d, 509 U.S. 25 28 1 trier of fact to comprehend a material issue in a case.” Id. at 1181. In order to demonstrate 2 necessity, “there must be some evidence, admissible or otherwise, that demonstrates a 3 serious dispute that could be resolved or understood through expert testimony.” Id. 4 Courts should also consider other factors when deciding if appointment of a neutral 5 expert is appropriate. First, courts should consider “whether testimony from the parties’ 6 experts is sufficient to reveal the facts.” Id. at 1182 (citation omitted). “Expert witnesses 7 are rarely appointed under Rule 706 because the adversary system is usually sufficient to 8 promote accurate factfinding.” Id. However, where the plaintiff is an indigent prisoner 9 proceeding pro se, courts should be cautious of a “wholly one-sided presentation of 10 opinions on the issue.” Id. (quoting Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996)). 11 Next, courts should consider whether appointment of an expert witness is appropriate given 12 the nature of the plaintiff’s claims. Id. at 1184. In ruling on any motion, a court must 13 “expressly articulate a reasoned explanation for its determination.” Id. at 1178–79 (quoting 14 Gaviria v. Reynolds, 476 F.3d 940, 945 (D.C. Cir. 2007)). 15 C. Discussion 16 1. Deliberate Indifference to Serious Medical Needs 17 Here, Plaintiff’s first claim against Defendants is for deliberate indifference to 18 serious medical needs under the Eighth Amendment.3 (ECF No. 1 at 3–12.) In Estelle v. 19 Gamble, the Supreme Court held that an inmate making an Eighth Amendment claim based 20 on prison medical treatment must show “deliberate indifference to serious medical needs.” 21 429 U.S. 97, 104 (1976). In the Ninth Circuit, courts determine whether such a showing 22 has been met based on a two-part test. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 23 The plaintiff must first “show a serious medical need by demonstrating that failure to treat 24

25 3 Plaintiff’s second claim is a First Amendment claim for retaliation. (ECF No. 26 1 at 13–16.) Plaintiff’s motion focuses on the need for a medical expert with respect to 27 Plaintiff’s Eighth Amendment deliberate indifference claim only. Accordingly, the Court focuses on Plaintiff’s Eighth Amendment claim herein, but the reasoning of this Order 28 1 a prisoner’s condition could result in further significant injury or the unnecessary and 2 wanton infliction of pain.” Id. at 1096 (internal quotations omitted). Such injuries include 3 (1) those that “a reasonable doctor or patient would find important and worthy of comment 4 or treatment”; (2) “the presence of a medical condition that significantly affects an 5 individual’s daily activities”; and (3) “the existence of chronic and substantial pain.” 6 McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other grounds 7 by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 8 After making a showing of a serious medical need, the plaintiff must show that “the 9 defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. This 10 requirement is “less stringent in cases involving a prisoner’s medical needs than in other 11 cases involving harm to incarcerated individuals because ‘[the] State’s responsibility to 12 provide inmates with medical care ordinarily does not conflict with competing 13 administrative concerns.’” McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillian, 14 503 U.S. 1, 6 (1992)). 15 Accordingly, the Ninth Circuit has instructed courts to consider two separate 16 elements when determining whether defendants were deliberately indifferent. First, the 17 plaintiff must show “a purposeful act or failure to respond to a prisoner’s pain or possible 18 medical need.” Jett, 439 F.3d at 1096. This element “may appear when prison officials 19 deny, delay or intentionally interfere with medical treatment, or it may be shown by the 20 way in which prison physicians provide medical care.” Id. (citation omitted). The plaintiff, 21 however, must be able to show that defendants were subjectively aware of the risk of 22 serious harm. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Subjective 23 awareness “may be shown by circumstantial evidence where the facts are sufficient to 24 demonstrate that a defendant actually knew of a risk of harm.” Lolli v. County of Orange, 25 351 F.3d 410, 421 (9th Cir. 2003). Second, the plaintiff must show that he was harmed by 26 the indifference. Jett, 439 F.3d at 1096. 27 /// 28 /// 1 2. Analysis 2 In his motion, Plaintiff seeks an expert because “[t]he issue of whether [his] chronic 3 disease was and is accompanied by substantial pain is an issue that should be explored by 4 an impartial expert witness.” (ECF No. 16 at 3.) Plaintiff argues, rightly, that to establish 5 an Eighth Amendment violation he “must show that the course of treatment [Defendants] 6 chose was medically unacceptable under the circumstances,” and that Defendants “chose 7 this course in conscious disregard of an excessive risk to [his] health.” (See id. (citing 8 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).) A mere “difference of opinion,” 9 on the other hand, “between a physician and the prisoner—or between medical 10 professionals—concerning what medical care is appropriate does not amount to deliberate 11 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 12 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled on other grounds by Peralta v. Dillard, 13 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). 14 In evaluating Plaintiff’s motion, the Court has the benefit of being able to review 15 Defendants’ motion for summary judgment. The Court’s review of Defendants’ motion 16 indicates that a neutral expert witness will not promote accurate factfinding in this case. In 17 their motion, Defendants do not dispute the objective medical findings underlying 18 Plaintiff’s DDD and they have not terminated all treatment for Plaintiff’s DDD. Rather, 19 the core of the dispute is that Plaintiff seeks specific medication (i.e., gabapentin) and 20 Defendants have refused to continue prescribing this medication. 21 In determining whether gabapentin is appropriate to treat Plaintiff’s DDD, the Court 22 has the benefit of the following sources of information: (1) an April 18, 2019 memorandum 23 from the California Correctional Health Care Services (“CCHCS”) regarding 24 “gabapentin’s place in therapy,” noting that the FDA has only approved gabapentin for the 25 treatment of partial seizures and postherpetic neuralgia, and urging health care providers 26 “to limit prescribing gabapentin to its FDA-approved indications as clinically appropriate” 27 (ECF No. 17-6 at 155); (2) an October 11, 2018 memorandum from J. Clark Kelso, 28 Receiver of CDCR’s medical services unit under the Plata v. Schwarzenegger settlement, 1 entitled “Treatment to Reduce the Burden of Disease and Deaths from Opioid Use 2 Disorder,” which addresses various research studies/papers and the need to reduce the 3 substantial number of patients within CDCR who have substance and/or opioid use 4 disorders due to the high rate of drug overdoses in California’s prisons (id. at 151–53); (3) 5 CCHCS care guidelines regarding use of gabapentin (ECF No. 17-7 at 2–3); (4) United 6 States Centers for Disease Control and Prevention (“CDC”) guidelines for use of opiates 7 in the treatment of chronic pain (id. at 2); (5) the opinion of Bennett Feinberg, MD, the 8 Chief Medical Consultant for the CCHCS Office of Legal Affairs (ECF No. 17-5); (6) a 9 declaration from each physician Defendant (ECF Nos. 17-2; 17-3; 17-4); and (6) nearly 10 150 pages of Plaintiff’s medical records, dating from July 2017 through June 2020 (ECF 11 No. 17-6 at 5–149). 12 Given the foregoing, the Court finds that an expert witness is not necessary and 13 would not be significantly useful to the factfinder to comprehend a material issue in this 14 case. See Gorton, 793 F. Supp. 2d at 1181. The medical facts of this case are not complex. 15 Plaintiff’s claims do not raise “probing, complex questions” or require consideration of 16 complex scientific evidence. See Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir. 1997); 17 McKinney, 924 F.2d at 1511. Moreover, the Eighth Amendment “deliberate indifference” 18 standard does not demand an expert, nor special consideration by the courts, because lay 19 people generally are able to understand the severity of medical issues. See Allen, 2018 WL 20 5819782, at *2–3. 21 In his motion, Plaintiff further argues that he would be prejudiced from having a fair 22 trial because his condition and records have only been reviewed by CDCR-affiliated 23 individuals and he is not a medically trained professional. (ECF No. 16 at 3–5.) However, 24 given the variety of sources above, including FDA and CDC guidelines on the appropriate 25 use of gabapentin, the Court finds that the factfinder is not receiving a one-sided view of 26 the issue that would prejudice Plaintiff. See Gorton, 793 F. Supp. 2d at 1182. Given the 27 foregoing, the Court DENIES Plaintiff’s motion for appointment of a medical expert. 28 /// 2 In a separate motion, Plaintiff seeks to modify the scheduling order to extend the 3 expert deadlines. (ECF No. 20.) Plaintiff seeks an extension because of the pending 4 motion for appointment of a medical expert and limited prisoner movement due to COVID- 5 19. (Id. at 1.) For good cause shown, the motion is GRANTED. Accordingly, the Court 6 modifies the scheduling order as set forth below. 8 Plaintiff also seeks to continue the deadline by which to file his opposition to 9 Defendants’ motion for summary judgment. (ECF No. 22.) Plaintiff requests to continue 10 the deadline to file his opposition until the discovery deadline in the scheduling order 11 because he needs additional time to complete discovery in order to obtain facts to oppose 12 Defendants’ motion. (Id. at 1–2.) For good cause shown, the motion is GRANTED. 13 Accordingly, the Court modifies the briefing schedule on Defendants’ motion for summary 14 judgment as set forth below. 16 For the reasons set forth above, the Court DENIES Plaintiff’s motion for 17 appointment of a medical expert, GRANTS Plaintiff’s motion to modify the scheduling 18 order, and GRANTS Plaintiff’s motion for a continuance. 19 Accordingly, the Court modifies the scheduling order (ECF No. 8) as follows: 20 1. The parties shall designate their respective experts in writing and comply with 21 the disclosure provisions in Federal Rule of Civil Procedure 26(a)(2)(A) and 22 (B) by November 27, 2020. 23 2. The date for exchange of rebuttal experts and supplemental reports is 24 December 11, 2020. 25 The Court further modifies the briefing schedule (ECF No. 18) on Defendants’ 26 motion for summary judgment as follows: 27 1. Plaintiff’s opposition to Defendants’ motion for summary judgment (ECF No. 28 17) must be filed and served on all parties no later than November 27, 2020. 1 2. If Plaintiff does file and serve an opposition, Defendants must file and serve 2 a reply to Plaintiff's opposition by December 11, 2020. 3 3. Thereafter, the Court will, in its discretion and unless otherwise ordered, 4 consider Defendants’ motion pursuant to Fed. R. Civ. P. 56 on the moving 5 papers and without oral argument pursuant to CivLR 7.1(d)(1). 7 ||Dated: October 30, 2020 g vi B A bande 9 n. Jill L. Burkhardt 10 rited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28