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7th Cir's.'97 Ledford v. Sullivan Opinion reviews Need and Cost Issues re Appointing Expert Witness for Indigent, Pro Se when the District Court said:
    1. Expert Testimony was Unnecessary and;
    2. No Funds were Available to Compensate the Expert.

In this case, when the district court stated that no funds existed to pay for the appointment of an expert, it failed to recognize that it had the discretion to apportion all the costs to one side. We caution against reading Fed.R.Evid ("R.") 706(b) in such a narrow fashion that the rule would allow for court-appointed experts only when both sides are able to pay their respective shares. Read in such a restrictive way, Rule 706(b) would hinder a district court from appointing an expert witness whenever one of the parties is indigent, even when that expert's testimony would substantially aid the court. However, in this case, the trial court also stated, and we agree, that appointing an expert was unnecessary. The district court therefore exercised the discretion conferred upon it by R.706(b).

IN THE U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT


No. 95-1959

WILLIAM N. LEDFORD, Plaintiff-Appellant,
v.
MICHAEL J. SULLIVAN, et al., Defendants-Appellees.

Appeal from the U.S. Dist. Court for the W. Dist. of Wisc.
No. 94 C 675--John C. Shabaz, Chief Judge.

ARGUED SEPT. 18, 1996--DECIDED JAN. 27, 1997

Before CUMMINGS, BAUER, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

William Ledford filed suit [pro se] under 42 U.S.C. sec.1983, alleging that when prison officials deprived him of his medication, they violated his 8th Amendment right to be free from cruel and unusual punishment and his 14th Amendment right to due process of law. The district court granted Ledford's motion to proceed pro se and in forma pauperis and subsequently denied his two motions for appointment of an expert witness, finding that expert testimony was unnecessary and that no funds were available to compensate the expert.

Ledford proceeded to trial on his 8th Amendment claim. At trial, Dr. Musunuru, a named defendant, and Dr. Arndt, a privately-retained expert, testified for the prison officials that the discontinued use of Zoloft produced minimal, if any, side effects. A jury returned a verdict for the prison officials.

On appeal, Ledford contends that ... the trial judge should have appointed an expert witness to testify as to the prison officials' deliberate indifference to his serious medical needs. We find that court appointment of an expert witness was unnecessary. Therefore, we affirm.

ANALYSIS

B. APPOINTMENT OF AN EXPERT

1. The Need for Court Appointment of an Expert

Ledford next contends that the district court abused its discretion by failing to appoint an expert witness pursuant to Federal Rule of Evidence 706 ("R.706") that states "[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." R.706(a). We review the denial of a defendant's motion for appointment of an expert witness for abuse of discretion.

We have not directly addressed whether the appointment of an expert is essential to establish deliberate indifference. Generally, if scientific, technical, or other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a fact in issue, a court will utilize expert witnesses. See R.702. In the present case, the issue posed to the trier-of-fact was whether the state prison officials were "deliberately indifferent" to Ledford's "serious medical needs." Therefore, in order to establish a violation of the 8 Amend., Ledford had to prove that the state prison officials displayed deliberate indifference toward his illness and that his illness was serious. See Estelle v. Gamble, 429 U.S.97 ('76).

Given the particular factual issues in this case, determining deliberate indifference was not so complicated that an expert was required to establish Ledford's case. The test to decide whether a prison official acted with deliberate indifference is a subjective one. Duckworth v. Franzen, 780 F.2d 645 (7th Cir.). Because the test for deliberate indifference is more closely akin to criminal law than to tort law, the question of whether the prison officials displayed deliberate indifference toward Ledford's serious medical needs did not demand that the jury consider probing, complex questions concerning medical diagnosis and judgment. The test for deliberate indifference is not as involved as that for medical malpractice, an objective inquiry that delves into reasonable standards of medical care. See Franzen at 652.

The jury in this case was instructed as to deliberate indifference as follows:

The first element of deliberate indifference is to be evaluated by a subjective analysis of the defendant or defendants and each defendant's state of mind. To act "deliberately" means to act intentionally; that is, knowingly and voluntarily and not because of mistake, inadvertence, or accident.

Deliberate indifference means that officials acted willfully and maliciously, or with reckless disregard of inmate's well-being with respect to plaintiff's medical care. A defendant acts recklessly when he disregards a substantial risk of danger that either is known to him or would be apparent to a reasonable person in his position. Recklessness is characterized by highly unreasonable conduct or a gross departure from ordinary care in a situation where a high degree of danger is present.

The court below gave this instruction after the jury heard defendants Feldmann and Musunuru state that they believed that discontinuing Zoloft produced no serious medical consequences. The jury was capable of evaluating the defendants' subjective belief in light of the court's deliberate indifference definition without the aid of an expert. In making its decision, the jury likely assessed the defendants' credibility as well.

The jury could likewise comprehend whether Ledford had serious medical needs without the aid of an expert. The trial court instructed:

The second element [of a deliberate indifference claim], serious illness, is to be examined objectively, focusing on the illness and the reasonable foreseeable consequences of deprivation of, or delay in, or inadequate care. Serious medical need can be defined as a life-threatening condition or a one carrying a risk of permanent impairment or extreme pain and suffering if untreated.

During the time he was deprived of his medication, Ledford allegedly experienced nausea, dizziness, vomiting, emotional and mental regression, and depression. These symptoms were not beyond a lay person's grasp. Most people are familiar with them. The jury was aware of the court's instructions, Ledford's side effects, and the fact that he was subsequently taken off Zoloft altogether. The issue of whether hiss illness was so severe that it was life-threatening or demanded a steady supply of Zoloft was not so complex to require an expert.

Ledford claims that three other circuits have found that appointment of an expert witness is necessary to prove deliberate indifference to a prisoner's serious medical needs. See Smith v. Jenkins, 919 F.2d 90 (8th Cir.'90); Greason v. Kemp, 891 F.2d 829 (11th Cir.'90); Jones v. Diamond, 636 F.2d 1364 (5th Cir.). These cases are distinguishable from the one at hand.

Unlike this case where a jury returned a verdict of no deliberate indifference, the court in Smith found that the record was not sufficiently developed to determine the issue on a summary judgment motion, and therefore, the trial court should have deferred finding that there was no deliberate indifference. Smith at 93. The court reversed, remanded, and instructed the trial court to study Smith's medical record, and that if a dispute still existed as to diagnosis and treatment before and after incarceration, the court might only then appoint an expert or obtain a further opinion from Smith's previous physician about prior treatment and need for continuing medication. Id.

Plaintiff Greason, a schizophrenic and suicidal prisoner at a mental institution, was transferred to prison. Without reviewing his file, a prison doctor examined him for a few minutes, concluded he was "stable," and discontinued medication. Greason subsequently committed suicide. The court observed that often "[w]hether an instance of medical misdiagnosis resulted from deliberate indifference or negligence is a factual question requiring exploration by expert witnesses." Greason at 835. Misdiagnosis differs from examination delay. Moreover, the Greason court didn't order expert witness appointment.

Finally, in Jones, while plaintiffs won their 8th Amend. cruel and unusual punishment suit, the court found no deliberate indifference to their serious medical needs. Plaintiffs wanted expert witness fees reimbursed, not appointment. Jones at 1382. The court stated that without the ability to recover expert fees, indigent plaintiffs will be unable to bring civil rights cases, Id., but spoke in very general terms, not mandating that expert appointment was necessary for indifference claims.

2. Costs To Appoint An Expert

Ledford contends that the trial court abused its discretion when it reasoned that no funds existed to pay an expert. R.706(b) states: "In other civil actions and proceedings, the compensation [of an expert] shall be paid by the parties in such proportion and at such times as the court directs, and thereafter charged in like manner as other costs." A number of circuits have recognized that R.706(b) grants a district court discretion to apportion all costs of expert to one side. See, e.g., Steele v. Shah, 87 F.3d 1266 (11th Cir.'96) (remanding for not exercising discretion to appoint and pay expert for indigent plaintiff); McKinney v. Anderson, 924 F.2d 1500 (9th Cir.'91) (finding "such proportion as the court directs," permits apportioning all costs to one side); Webster v. Sowders, 846 F.2d 1032 (6th Cir.'88) ("Court has authority to apportion costs under [R.706(b)], including excusing impecunious parties from their share"); U.S. Marshals v. Means, 741 F.2d 1053 (8th Cir.'84) (expert witness fee payment only under "compelling circumstances").

Here, when the court said that no funds existed to pay for an expert, it failed to recognize it had discretion to apportion all the costs to one side. We caution against reading R.706(b) in such a narrow fashion that the rule would allow for court-appointed experts only when both sides are able to pay their respective shares. Read so restrictively, R.706(b) would hinder appointing expert witnesses whenever one party's indigent, even when expert testimony would substantially aid the court. See McKinney at 1511. However, in this case, the court also stated, and we agree, that an appointed expert was unnecessary so exercised its discretion under R.706(b).

In light of the authority vested in the lower court under R.706 and by Ledford's deliberate indifference claim's facts, we find no abuse of discretion in not appointing an expert.

CONCLUSION

We AFFIRM the judgment of the trial court as to Ledford's 14th Amend. claim, but on different grounds, and AFFIRM its decision to not appoint an expert witness.

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