United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge
Christopher Montoya, who is confined in the Arizona State
Prison-Kingman (ASP-Kingman) in Kingman, Arizona, filed a pro
se civil rights First Amended Complaint pursuant to 42 U.S.C.
§ 1983 (Doc. 9). The Court ordered Defendant Herrick to
answer Count III (Doc. 10). Defendant filed an Answer (Doc.
12), and all issues are joined. Pending before the Court are
“Plaintiff's Indigent Request for Appointment and
Payment of a Medical Expert” (Doc. 25)
requests that the Court appoint Plaintiff a medical expert to
“provide their expertise [sic] assessment of the events
surrounding the medical treatment of Plaintiff, and . . .
provide evidence to support or provide a defense to any
parties Summary Judgment motion.” (Doc. 25 at 2).
702 of the Federal Rules of Evidence provides that
“[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.” The Court has the discretion to appoint an
expert and to apportion costs, including the apportionment of
costs to one side. Fed.R.Evid. 706; Ford ex rel. Ford v.
Long Beach Unified School Dist., 291 F.3d 1086, 1090
(9th Cir. 2002). Expert witnesses, however, cannot be
appointed solely to aid a litigant in presenting his or her
case. Expert witnesses can be only appointed where necessary
to aid the court. See Pedraza v. Jones, 71 F.3d 194,
196 (5th Cir. 1995) (stating that “the plain language
of [28 U.S.C. § 1915] does not provide for the
appointment of expert witnesses to aid an indigent
litigant”). “The most important factor in favor
of appointing an expert is that the case involves a complex
or esoteric subject beyond the trier-of-fact's ability to
adequately understand without expert assistance.”
Wright & Miller, 29 Fed. Prac. & Proc. Evid. §
Court finds that Plaintiff's allegations in his First
Amended Complaint (Doc. 9) are not so complicated as to
require the appointment of an expert witness to assist the
Court. A trier-of-fact does not require a medical expert to
determine whether Defendant was deliberately indifferent to
Plaintiff's medical needs. See Ledford v.
Sullivan, 105 F.3d 354, 359 (7th Cir. 1997) (recognizing
that deliberate indifference claims are based upon a
subjective state of mind, and thus do normally not require
the kind of objective, expert testimony required in a
malpractice action). Plaintiff's Motion (Doc. 25) will be
“Proposed order for the Issuance of a Subpeona [sic]
for Production of Documents” (Doc. 21)
requests permission for the issuance of a subpoena duces
tecum pursuant to Fed.R.Civ.P. 45 to Correct Care Solution
Corporation, the employer of Defendant Herrick, to determine
“Liability Insurance information for coverage of
Stephanie Herrick N.P. during the course of employment from
January 1, 2016 to present day [November 1, 2018].”
Plaintiff seeks the name, address, policy numbers, and
declaration of types of insurance covering Defendant Herrick.
Plaintiff indicates that Defendant's Disclosure Statement
reflected no insurance agreements.
has filed no objection to Plaintiff's Motion. The Court
finds that the information sought is relevant pursuant to
Fed.R.Civ.P. 26(b)(1). The Court will grant Plaintiff's
request for a subpoena duces tecum form to be served on
Correct Care Solution Corporation for the limited purpose of
obtaining liability insurance coverage information for
Defendant Herrick from January 1, 2016 through November 1,
2018, specifically the liability insurance company's
name, address, policy numbers, and declaration of types and
amount of coverage.
“Amend Complaint being Sought through Court's
Leave” (Doc. 20)
seeks to add a cause of action against Defendant Herrick for
violating federal HIPPA laws during the course of discovery
by releasing Plaintiff's medical records to defense
counsel. In her Response, Defendant correctly notes that a
private cause of action does not exist under the Health
Insurance Portability and Protection Act of 1996 (42 U.S.C.
§ 1320d-2) (“HIPPA”). “HIPAA itself
does not provide for a private right of action, see 65
Fed.Reg. 82601 (Dec. 28, 2000) (“Under HIPAA,
individuals do not have a right to court
action.”).” Webb v. Smart Document Sols.,
LLC, 499 F.3d 1078, 1082 (9th Cir. 2007).
district court has discretion to adopt local rules. . . .
Those rules have ‘the force of law.'”
Hollingsworth v. Perry, 558 U.S. 183 (2010)
(citation omitted). Hence, both the parties and the Court are
bound by the local rules. LRCiv. 83.3(c) (1) (“Anyone
appearing before the court is bound by these Local
Rules.”); Professional Programs Group v. Department
of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). A
district court's departure from its local rules is
justified only if the effect is ...