Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00269-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH SMITH, Plaintiff, v. STAN TAYLOR, THOMAS CARROLL, FIRST CORRECTIONAL MEDICAL, INC., DAVID WILKERSON, and GAIL ELLER, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-269-SLR JURY TRIAL DEMANDED

DEFENDANT THOMAS CARROLL'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF AN EXPERT COMES NOW, Defendant Thomas Carroll ("Defendant Carroll") by and through undersigned counsel, and hereby opposes Plaintiff's Motion for Appointment of a "board certified dermatologist" to evaluate his medical condition. (D.I. 22). In support of his position, Defendant Carroll states the following: 1. On or about May 17, 2007, Kenneth Smith ("Plaintiff") filed a Complaint (D.I. 2).

pursuant to 42 U.S.C. § 1983 with leave to proceed in forma pauperis.

Although not stated as such, Plaintiff's allegations against Defendant Carroll appear to be based upon the Eighth Amendment under which states have a duty to provide "adequate medical care to those it is punishing by incarceration." West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). 2. On or about November 21, 2007, Defendant Carroll Answered the

Complaint. (D.I. 14). 3. On or about March 7, 2008, Plaintiff filed a Motion for Appointment of an

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Expert, or as he states, a "board certified dermatologist" to evaluate his medical condition. (D.I. 22). This is Defendant Carroll's response in opposition to that motion. 4. Plaintiff has not provided any authority, nor does he cite to any Federal

Rule, which the Court can rely on for the appointment of a "board certified dermatologist" as a court expert. Defendant Carroll asserts that Rule 706 of the Federal Rules of Evidence allows for the appointment of an expert by the court, but appointment of experts pursuant to this rule is a rare and relatively infrequent occurrence generally reserved for cases where the issues are esoteric, complex, or technical. See Ford v. Mercer County Correctional Ctr., 2006 WL 714674, at *4 (3d Cir. March 22, 2006); Fed. R. Evid. 706, Advisory Comm. Note ("actual appointment is a relatively infrequent occurrence"); In re Joint E & S. Dists. Asbestos Litigation v. Blinken, 830 F.Supp. 686, 693 (E. & S.D.N.Y 1993)(appointment "should be reserved for exceptional cases in which ordinary adversary process does not suffice. . . "). Further, Rule 706 "allows for appointment of an expert to aid the Court, and not for the purpose of aiding an indigent litigant, incarcerated or not." Kerwin v. Varner, 2006 WL 3742738, at *2 (M.D. Pa. Dec. 15, 2006). 5. Plaintiff has not cited to any exceptional circumstances or complex issues

as a basis for appointment of an expert by the Court. Indeed, Plaintiff provides little to no support for his request at all. In fact, it appears from Plaintiff's motion that medical treatment has been provided by a dermatologist which is still ongoing. Plaintiff has not established or even alleged that the medical issues are so complex as to require appointment of an independent medical expert by the Court. Moreover, expert testimony is not required in every medical needs case. McCabe v. Prison Health Services, 117

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F.Supp. 2d. 443, 452 (E.D. Pa. 1997)(citing Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987)). Plaintiff has not alleged any other good cause for such appointment and his motion should be denied. 6. Defendant Carroll respectfully requests that this Honorable Court deny

Plaintiff's motion for appointment of an expert.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Stacey Xarhoulakos__________ Stacey Xarhoulakos, I.D. No. 4667 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendant Caroll

Dated: March 17, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH SMITH, Plaintiff, v. STAN TAYLOR, THOMAS CARROLL, FIRST CORRECTIONAL MEDICAL, INC., DAVID WILKERSON, and GAIL ELLER, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-269-SLR

ORDER Upon the Plaintiff's Motion for Appointment of an Expert and Defendant Carroll's Response in Opposition to the Motion; and it appearing that good and sufficient notice of Plaintiff's Motion and Defendant's Opposition has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Motion for Appointment of an Expert is DENIED. SO ORDERED this _________ day of ______________, 2008.

____________________________________ The Honorable Sue L. Robinson

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CERTIFICATE OF SERVICE I hereby certify that on March 17, 2008, I electronically filed Defendant Thomas Carroll's Response in Opposition to Plaintiff's Motion for Appointment of an Expert with the Clerk of Court using CM/ECF. I hereby certify that on March 17, 2008, I have sent notification of such filing by U.S. First Class Mail to: Kenneth Smith, Inmate SBI#193906 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]