(PC) Fregia v. Chen

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT — 8 — EASTERN DISTRICT OF CALIFORNIA — 9 — — 10 — MARK A. FREGIA, Case No. 1:20-cv-01024-KES-EPG (PC) — 11 — Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 12 FOR THE COURT TO APPOINT AN EXPERT v. PSYCHIATRIST TO TESTIFY AT TRIAL — 13 — YUCUI CHEN, et al., 14 (ECF No. 190) Defendants. — 15 — — 16 — Plaintiff Mark Fregia (Plaintiff) is a state prisoner proceeding pro se and in forma — 17 — pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 . (ECF Nos. 4, 16). On — 18 — July 30, 2025, Plaintiff filed a document entitled “Plaintiff’s Expert Witness Disclosure and — 19 — Request The Court Appoint An Expert Psychiatrist to Testify at Trial.” (ECF No. 190). — 20 — Plaintiff’s motion requests that the Court appoint a medical expert to testify at trial regarding — 21 — the difference between tapering off and immediately stopping a 225-milligram dose of Effexor. — 22 — (ECF No. 190). — 23 — For the reasons stated below, the Court will deny Plaintiff’s motion. — 24 — I. BACKGROUND — 25 — A. Procedural History — 26 — Plaintiff filed his initial complaint on July 24, 2020. (ECF No. 1). After screening, — 27 — Plaintiff was permitted to proceed on his claims against Defendants Gosso, Johnson, and Chen — 28 — 1 for deliberate indifference to serious medical needs and against Defendant Gosso for 2 retaliation. (ECF Nos. 17 and 18). Defendants subsequently filed two motions for summary 3 judgment, which resulted in the dismissal of all claims except for Plaintiff’s sole remaining 4 claim against Defendant Gosso for deliberate indifference to serious medical needs for 5 allegedly denying him medications while he was confined at the Substance Abuse Treatment 6 Facility and State Prison (SATF) in Corcoran, California. (ECF Nos. 57 and 164). 7 B. Plaintiff’s Motion for a Court-Appointed Medical Expert 8 In his motion, Plaintiff states he seeks the appointment of “an expert psychiatrist to 9 testify at trial.” (ECF No. 190). Specifically, Plaintiff argues that an expert is needed “because 10 Dr. Chen nor M.A. Gosso followed C.D.C.R. and Physicians’ Desk Reference (P.D.R.) policies 11 and procedure for tappering [sic] off a long existing high dose of 225 mgs Effexor daily, as 12 opposed to instantaneously.” (ECF No. 190, at p. 2). Plaintiff also argues that a court13 appointed expert is necessary because he “has no ability to investigate such complex scientific 14 evidence in a timely fashion,” and an expert “will aid in his legal representation to cross 15 examine defendants.” (ECF No. 190, at p. 4). 16 II. LEGAL STANDARD 17 The Court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal 18 Rules of Evidence. See Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 19 1065, 1071 (9th Cir. 1999). Rule 706(a) states, “On a party’s motion or on its own motion, the 20 court may order the parties to show cause why expert witnesses should not be appointed and 21 may ask the parties to submit nominations. The court may appoint any expert that the parties 22 agree on and any of its own choosing.” Fed. R. Evid. 706(a). 23 Court-appointed experts are typically used in complex litigation to assist the finder of 24 fact. See Walker, 180 F.3d at 1071 (appointing a physician expert witness where medical 25 testimony was not “particularly clear”); see also Wilkins v. Barber, 562 F.Supp.3d 943 , 945 26 (E.D. Cal. 2021) (“[C]ourt-appointed experts typically are used in complex litigation where the 27 record is not clearly developed by the parties, and generally serve the purpose of aiding the 28 court in understanding the subject matter at hand.”). Such experts are not appointed for the 1 purpose of serving as an advocate for one party. See Faletogo v. Moya, No. 12CV631 GPC 2 WMC, 2013 WL 524037 , at *2 (S.D. Cal. Feb. 12, 2013) (“Rule 706(a) of the Federal Rules of 3 Evidence does not contemplate court appointment and compensation of an expert witness as an 4 advocate for one of the parties.”); Brooks v. Tate, No. 1:11-CV-01503 AWI, 2013 WL 5 4049043, at *1 (E.D. Cal. Aug. 7, 2013) (“Rule 706 is not a means to avoid the in forma 6 pauperis statute and its prohibition against using public funds to pay for the expenses of 7 witnesses. . . .”). 8 III. ANALYSIS 9 The Court will deny Plaintiff’s motion for a court-appointed medical expert. 10 Although Plaintiff states he seeks the appointment of a neutral medical expert, 11 Plaintiff’s arguments demonstrate that he is actually seeking an expert who will assist him in 12 presenting his case. Plaintiff argues an expert is necessary to assist his investigation of this 13 case and to help him prepare for cross-examination. Plaintiff also seeks a medical expert to the 14 effects when “protocols, policies, and procedures” are not followed, and “to explain how the 15 dates and times do not add up or match when preparing that pharmacy data.” (ECF No. 190, at 16 pp. 7-8). Rule 706(a), however, does not contemplate the appointment of an expert to assist 17 one party to the detriment of the other side. Moreover, a party is not entitled to a court18 appointed expert. 19 Further, Plaintiff has not demonstrated that the appointment of an expert is necessary in 20 the present case. This case is proceeding on a single claim against a single defendant. The sole 21 medical basis Plaintiff raises in support of his motion is the difference in tapering off a 22522 milligram dose of Effexor as opposed to stopping instantaneously. This is not an unduly 23 complicated issue requiring the assistance of an expert witness to understand. Moreover, 24 Plaintiff can testify directly as to the injuries he suffered. 25 Accordingly, Plaintiff’s motion is denied. 26 \\\ 27 \\\ 28 \\\ 1 CONCLUSION AND ORDER 2 Accordingly, IT IS ORDERED that Plaintiff’s Request the Court Appoint an Expert 3 || Psychiatrist to Testify at Trial (ECF No. 190) is DENIED. — 4 — 5 IT IS SO ORDERED. Dated: _ August 8, 2025 [spe heey 7 UNITED STATES MAGISTRATE JUDGE — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —