Free Motion to Appoint Expert - District Court of Delaware - Delaware

. Case 1 :07-cv-00514-SLR Document 4 Filed 08/22/2007 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR TI-IE DISTRICT OF DELAWARE an i `C ''A v .`''`'
DAVID R. RUSH, ) E__hn §
Plaintiff J a. O 7 ·· 5 ‘l 4 ·—·· E.
”· a l CA ——---———
CORRECTIONAI. MEDICAL SERVICES, Inc, et al, ) ,j F5 F5 ,§’_
Defendants. uh . gfj
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PLAINTIFF S MOTION FOR APPOINTMENT OF AN EXPERT WITNESS . ..,, . ...,. , ..... *5
_ COMES NOW, pro se plaintiff, Rush, pursuant to the appropriate Local Rule ofthe United States ·|. .; r ---=· » ---4-·¤-~a..;. M 2 I... Qn
for the District of Delaware and Fed. R. Evid. 702, 706 (a) and 28 U.S.C. section 1915 and does respectthlly request the
Court to appoint a medical expert t assist the Court and the trier of fact to understand evidence and or to determine the
medical facts in issue. Rush offers the following: ·
Rush is pro se and seeks pleading leniency pursuant to Haines v. Korner, 404 U.S. 519 (1972). Rush offers the
following in support: ·
I. The Court granted Rnsh’s in forma pauperis status on , and R.ush’s complaint is with merit.
2. Rush’s complaint primarily concerns several claims of deliberate indiderence to his several serious medical
conditions in violation of his constitutional rights. *
l 3. Rush’s complaint raises at least three (but does not waive any claims that the tacts may give rise to), serious
U medical conditions of which he seeks immediate medical care. They are as follows: *
A. Hepatitis C: (Requires immediate and consistent Interferon treatments, etc.) (See Compl. ___ to _) ;
B. pAcute—late stage Lipoma growths: (Require immediate excision and possible skin, muscle, blood vessel,
and or nerve repair/reconstnxction, and physical therapy) (See Compl. at _________ to ___), and
C. Degenerative and painful right shoulder condition with cist, etc., which requires a specialist
consultation and comprehensive exam, recommendation, and follow up. (See Complaint at __ to ____).
4. Though Rush believes that any layman could determine his medical conditions are obviously serious medical
conditions for the purpose of a deliberate indifference claim, Rush avers appointment of a medical expert is
necessary because the issues of fact that the Court and or jury must decide will also center on whether and to
what extent Rush experienced residual damage as a result of defendants’ deliberate indifference,
5. Rule 702 ofthe Federal Rules of Evidence provides, in pertinent part, "[i]f scientific, technical, or other l
specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a I
U witness qualified as an expert. ..may testify thereto .... ” _
. 6. Although it appears that the Third Circuit has yet to address the issue, other federal courts have addressed the
p i matter of whether, and when, an expert witness should be appointed in a pro se deliberate indifference case. See
I-Iell_ntg` l vhlcliinney, 509 U.S. 25, I 13 S.Ct. 247 5 (1993). (Suggesting the appointment of expert witness on
the health risks of environmental tobacco smoke). -
7. ‘Rush’s complaint and raises complicated issues of direct physical injury -(e.g. Liver damage, kidney damage,
I significant increased risk of diabetes, distigurement andprernature death, etc.), secondary effects (eg. acute
deterioration of health due to significant impairment of normal daily functions, etc.}, and directly related

. Case 1 :07-cv-00514-SLR Document 4 Filed 08/22/2007 Page 2 of 2
psyohologica1eii`eets (eng. severe mental and emotional distress: depression, anxiety, frustration, chrorie {
fatigue, isolation, sleeping disorder, and withdrawal, ete.). For example, see the following:
A. Rushfs Hepatitis C is known to cause a likely and sigr·.if3,cant risk of end organ failure, liver cancer, and
premature death via liver, kidney, etc. damage, and it significantly raises the risk ofeontracting diabetes;
B. R.ush’s acute late—stage Lipomas e-though generally benign cancer— are acute. They routinely cause tissue;
muscle, and nerve damage, and also rupture blood vessels. They will likely abscess at any time.
Moreover, they cause a signiiicant impairment to Rustfs normal daily functions. For example, Rush has a
significant impairment of his range of motion, mobility, and strength ofhis left arm. Rush is left handed,
l and this acts to disable Rush. Rush also endures routine humiliation form the obvious disligurement that
the hideous growths create, and has needlessly suffered a damaged reputation both socially and
professionally. They are extremely painful and standard over—the-counter meds are useless. Also, this
condition aggravates the deterioration of Rush’s health and causes a likely and significant risk to his
tiiture health; and
C. Deteriorating Right Shoulder condition, cist, etc. also causes acute pain and a signincant impairment of
Ruslfs normal daily timctions. It significantly impairs his range of motion, mobility, and strength as well
as aggravates Rl1Sh`S defaeto disability.
8. Rush was diagnosed by a doctor as having the chronic disease Hep. C. and as having several Lipornas that i
require "urgent" excision, and an MRI has uncovered the cause of Rush’ s right shoulder condition, which by
definition establishes a known serious medical condition. However, absent the Court taking judicial notice of _
these facts, an expert testimony is necessary. Our sister circuit advised that complex medical diagnosis mdes
expeit witnesses necessary. Ledford v. Sullivan, 105 F.3d 354, 358-59 (7* Cir. 1997).
9. Also, regarding complex psychological conditionsfetfects, the courts have sought expert opinion. .
Jordan v. Gardner, 986 F.2d -1521, 1525—26 (9* Cir 1993) (en banc); Davis v. Locke, 936 F.2d 1208, 1213 {1 lm
Cir. 1991); Davenport`v.DeR.ober1:is, 844 F.2d 13-10, 1315 (Th Cir. 1988), cert. denied; 488 908-(1989); and
Fisher v. Koehler, 692 F. Supp. 1519, 1543-46 (SD. NY 1988), ati"d 902 F.2d 2 (2“d Cir. 1990). Rush claimed
severe mental and emotional distress, which included depression, humiliation, sleeping disorder, anxiety and
hstration, and a damaged social and professional reputation. These matters are complex and require
specialized knowledge to assist the trier of fact in making an informed decision.
10. Lastly, concerning defendant CMS (i.e. professional connected health care provider), is a state oihcial for the
purpose ofthis action, and as such, is likely to present its own expert witness testimony. The courts have stated
_ that when defendants utilize expert to prove their ease, the denial to a p1aintiBE` is manifest iniustice. See
Parham v. Johnson, 126 F.3d 454, 460 (3'°‘ Cir. 1997). Also, F.R.E. mle 706 provides for the appointment of an
i independent expert for the purpose of offering unbiased expert testimony. This would be especially pertinent to
the case at bar. Indeed, examination and cross examination ofmedieal experts is beyond me scope of a pro se
prisoner. (1-lelling v. McKinney, supra, at _________). l
W1-IEREFORE, Rush prays —for the reason above- that the Court g1I&1'1tJrR.l1Sl`L°S reasonable request for the appointment of a
medical expert. Signed under penalty of perjury.
$2%;% t Qr z?·o°r
David Rush, SBI # 173418, 1181 Paddock Rd., Smyrna, DE Date

Case 1:07-cv-00514-SLR

Document 4

Filed 08/22/2007

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Case 1:07-cv-00514-SLR

Document 4

Filed 08/22/2007

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