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

_., { Case 1 :07-cv-00514-SLR Document 26 Filed 10/19/2007 Page 1 of 3
IN THE UNITED STATES DISTRECT COURT FOR THE DISTRECT OF DELAWARE r
DAVID R. RUSH, )
Plain "
v. um L; ·
CORRECHONAL MEDICAL SERVICES, Inc, et al, )
Defendants.
_ PLAINTIFFS MOTION FOR APPOINTMENT OF AN EXPERT WITNESS _
COMES NOW, pro se plaiiitiff, Rush, pursuant to the appropriate Loca1Ru1e ofthe United States Distzict Court
U I for the District of Delaware and Fd. R. Evid. 702, 706 (a) and 28 U.S.C. section 1915 and does respectfully request the
Court to appoint a medical expert t assiet the Court and the hier of feet to understand evidence and or to determine the _
medical facts in issue. Rush offers the following:
Rush is pro se and seeks pleading lehiency pursuant to Haines ve Kemer, 404 U.S. 519 (1972). Rush offers the
T; following in support: y y
Yi 1. The Court granted R.ush’ s in forma pauperis status on , amd Rush’s complaint is with merit.
Cs {$5 2. Ruslfs complaint primarily concerns several claims of deliberate indiierence to his several serious medical
, . - e.. -- - conditions inviolaiion of his constitutional rights. V
t t R.ush’s complaint raises at least three (but does not waive any claims that the thcts may give rise to), sexious
`ivii P hilh U E medical conditions of which he seeks immediate medical care. They are as follows; . ·
fg A. Hepatitis C: (Requires immediate and consistent Interferon treatments, etc.) (See Comp}. ____ to ____) ;
H3 _ B. Acute·late stage Lipoma growths: (Require immediate excision and possible skixi, muscle, blood vessel,
j and or nerve repai1:freco11si1·11otion, and physical therapy) (See Compl. at ___”_to ___); and .
y @¤ 1 $5 C. Degenerative and painful right shoulder condition with cist, etc., which requires a specialist l
___Aa_'A__ _,__,__ _ E consultation and comprehensive exam, recommendation, and follow up. (See Complaint at _____ to ___).
A 4. Though Rush believes that any layman could determine his medical conditions are obviously serious medical
` ` "` ` " t " nnnlni conditions for the purpose of a deliberate indifference claim, Rush avors appointment ofe medical expert is
necessary because the issues of fact that the Court and or jury mfuet decide will also center O1'1 Whether and 1:0
what extent Rush experienced residual damage as e. result of defendm1ts’ deliberate indifference.
t - 5. Rule 702 ofthe Federal Rules of Evidence provides, in pertinent part, “[i]f`scien1;ific, technical, or other _
1 specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a U
witness qualiiied as an exped:. ..may testify thereto .... "
` 6. Although it appears that the Third Circuit has yet to address the issue, other federal courts have addressed the
_ matter of whether, and when, am expert witness should be appointed in e pro se deliberate indifference case. See
_ Helling V.}/1CKj.I’l1'1€[., 509 U.S. 25, 113 S.Ct. 2475 (1993). (Suggesiring the appointment of expert witness on
the health tisks of environmental tobacco smoke). `
_ 7. ‘Rush’s complaint and raises complicated issues of direct physical injury (eg. Liver damage, kidney chmage,
U ‘ significamt increased risk ofdiabetes, disiigurement and premature death, etc.), secondary eifeots (eg. acute
T deterioration of health due to sigrtiic ant impairment ofnormal daily functions, etc .), and directly related

, 5 ° Case 1 :07-cv-00514-SLR Document 26 Filed 10/19/2007 Page 2 of 3
psychological eifects (e .g. severe mental and emotional distress: depression, anxiety, frustration, chrome A
fatigue, isolation, sleeping disorder, and withdrawal, etc). For example, see the following: l
A. R.ush’s Hepatitis C is known-to cause a likely and signiiicant risk of end organ failure, liver cancer, and
_ ` premature death via liver, kidney, etc. damage, and it significantly raises the risk of contracting diabetes;
B. Rush’s acute late-stage Lipomas —th0ugh generally benigi cancer- are acute. They routinely cause tissue,
muscle, and have damage, and also rupture blood vessels. They will likely abscess at any time.
. Moreover, they cause a signiticant impairment to Ruslfs normal daily functions. For example, Rush has a
signihcant impairment of his range of motion, mobility, and strength of his left arm. Rush is left handed,
and this acts to disable Rush. Rush also endures routine humiliation form the obvious disiigurernent that
· the hideous growths create, and has needlessly stnfered a damaged reputation both socially
professionally. They are extremely painful and standard over-the-counter meds are useless. Also, this
condition aggravates the deterioration of l?.ush’s health and causes a likely and significant risk to his
future health, and .
C. Deteriorating Right Shoulder condition, cist, etc. also causes acute pain and a significant impairment of
Rush’s normal daily functions. It significantly impairs his range ofmotion, mobility, and strength as well
as aggravates Rush’s defacto disability.
8. Rush was diagnosed by a doctor as having the chronic disease Hep. C. and as having several Lipomas that `
. require ‘°urgent" excision, and an MRI has uncovered the cause of R.ush’s right shoulder condition, which by
detinition establishes a known serious medical condition. However, absent the Court taking judicial notice of »
mess facts, an expert testimony is necessary. Our sister circuit advised that complex medical diagnosis makes
expert witnesses necessary. Ledford v. Sullivan, 105 F.3d 354, 358-59 (7* Cir. 1997). l
9. Also, regarding complex psychological conditiorisieffects, 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 (l lm
Cir. 1991); Davenpi ort v.DeR,obertis, 844 F .2:1 13-10, 1315 (Th Cir. 1988), cert. denied, 488 (1989); and-
Fisher v. Koehler, 692 F. Supp. 1519, 1543-46 (S.D. NY 1988), affd 902 F .2d 2 (2“" Cir. 1990). Rush claimed
severe mental and emotional distress, which included depression, humiliation, sleeping disorder, anxiety and
frustration, 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 contracted health care provider), is a state official for the
purpose of this 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 case, the denial to a plaintiffis manifest iniustice. See
Parham v. Johnson, 126 F.3d 454, 2160 (3** Cir. 1997). Also, F.R..E. rule 706 provides for the appointment of an
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 of medical experts is-beyond the scope of a pro se
prisoner. (Helling v. McKinne_y, supra, at ________). _ p l
WHEREPORE, Rush prays ·—for the reason abowre- that the Court grant Ruslfs reasonable request for the appointment of a
medical expert. Signed under penalty of perjury.
c@__,,,‘,;g gwgi _3—/QL-O?
David Rush, SBI it l734l8, 1181 Paddock Rd., Smyrna, DE Date

. ,..° Case 1:07-cv-00514-SLR Document 26 Filed 10/19/2007 Page 3 of 3 U
CERTIFICATE OF SERVICE
I, Plaintiff; Rush, have caused to be delivered on the below defendants the following documents by `
placing same in the U.S. Mail receptacle at DCC prison on the 12. 1+* day of Od'; 1; g [ , -
200l. E
1. Fili11gs:f)lEl"x.ll\t—1—ll;l:.S 1f1g)T10ll APIC-ll\T1¢IVlE.MT O1: A15!
5 M FIM ES S .
2. Filings: lj/ Q I
3. Filings: {gl / g I _
Defendmts/Comiselz I . W
James E. Drnec, Esq. _
(Counsel for CMS, et al) ‘ ` ~
711 King St. -
Wilmington, DE 19801 .
{301 ick &; Qczligk [LQ:
[Coun; el fe; 51 ate,)
"I 11 Q 5;,% 5] [eel
In/llmméiiém, DE |‘1§Ol R
EMM 1Qw/i Mvegev
David Rush, SBI # 173418, DCC W-1, D-16, 1131 Paddock Rd., Smyrna, DE 19977 _

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