United States District Court, E.D. Arkansas, Eastern Division
SHELDON DEAN CHRISTOPHER WATT, Reg. #26435-018 PLAINTIFF
UNITED STATES OF AMERICA DEFENDANT
Procedure for Filing Objections
Recommended Disposition ("Recommendation") has been
sent to Judge D.P. Marshall Jr. Any party to this suit may
file written objections with the Clerk of Court within
fourteen (14) days of filing of the Recommendation.
Objections must be specific and must include the factual or
legal basis for the objection. An objection to a factual
finding must identify the finding of fact believed to be
wrong and describe the evidence that supports that belief.
objecting, the right to appeal questions of fact may be
jeopardized. And, if no objections are filed, Judge Marshall
can adopt this Recommendation without independently reviewing
Watt, a federal inmate at the Federal Correction Institution
in Forrest City, Arkansas ("FCI-FC"), filed this
lawsuit without the help of a lawyer under the Federal Tort
Claims Act ("FTCA"). Mr. Watt complains that he was
not provided adequate medical care for his right knee.
Defendant previously moved for summary judgment, which this
Court recommended be granted. (#13, #21) In Mr. Watt's
objections, however, he requested, for the first time,
appointment of a medical expert. (#24) The Honorable D.P.
Marshall Jr. referred this matter back to this Court to
determine whether compelling circumstances support appointing
an expert for Mr. Watt in this case. (#26) For reasons that
follow, the Court finds that there are no compelling
circumstances that would justify the appointment of an expert
witness for Mr. Watt.
statutes do not address or authorize the general distribution
of federal funds to indigent parties for witness fees in
civil litigation. See 28 U.S.C. § 1915 and United
States v. Means, 741 F.2d 1053 (8th Cir. 1984). Even so,
the Court of Appeals for the Eighth Circuit has concluded
that a "district court may order the United States, as a
party [to litigation], to advance the fees and expenses of
lay and expert witnesses called by the court."
United States Marshals Service v. Means, 741 F.2d
1053, 1059 (8th Cir. 1984)(relying on FED.R.EVID. 614(a) and
706(b), FED.R.ClV.P. 54(d), and 28 U.S.C. §§ 1920
and 2412). The Means Court specifically cautioned
lower courts that such "discretionary power is to be
exercised only under compelling circumstances."
Spann v. Roper, 453 F.3d 1007 (8th Cir. 2006) (per
curiam), the Eighth Circuit determined than an indigent
inmate was entitled to the appointment of a medical expert.
The Court, however, noted compelling circumstances that
supported its decision. In Spann, an inmate
plaintiff filed a civil lawsuit under 42 U.S.C. § 1983
alleging that a nurse, after becoming aware that she had
administered an overdose of prescription medication to him
that was intended for another inmate, left Mr. Spann in his
cell for three hours. The lower court granted summary
judgment in favor of the defendant nurse because Mr. Spann
had not offered medical evidence regarding causation. The
Eighth Circuit reversed, specifically noting that "a
jury could find that the three-hour delay allowed the
medication to fully enter Spann's system, whereas
immediate medical attention would have enabled medical staff
to pump Spann's stomach or take other action to remove
the medication from Spann's system before it was totally
absorbed." 453 F.3d at 1009. The Court further observed
that it was "incongruous that the district Court denied
Spann's motion for an expert witness and then granted
summary judgment in part based on Spann's failure to
provide verifying medical evidence that the delay had
detrimental effects." Id.
this Court has considered the discretionary appointment of a
medical expert in the context of the FTCA. See Filpo v.
United States, Case No. 2:14cvl40-DPM, 2016 WL 715941
(E.D. Ark. 2016); Eaton v. United States, Case No.
2:14cv00116-KGB, 2016 WL 1029485 (E.D. Ark. 2016); and
Rueben v. United States, Case No. 2:13cv00033-DPM,
2014 WL 5460574 (E.D. Ark. 2014). In each of those cases,
inmate plaintiffs alleged that they had suffered damages as a
result of negligent medical care and delay in treatment. In
each of those cases, the Court found no compelling
circumstances to justify the appointment of a medical expert.
Notably, in each of those cases, the inmate plaintiffs were
routinely examined by medical personnel over a period of
time. None of those cases involved conditions requiring
case, as described in this Court's previous
recommendation, Mr. Watt was regularly evaluated by medical
personnel.According to his medical records, Mr. Watt
was seen at sick call eight times over a three-year time
period for complaints of right-knee pain: January 24, 2013;
April 23, 2013; June 7, 2013; June 26, 2013; July 11, 2014;
January 26, 2015; March 13, 2015; and April 13, 2015. On
February 28, 2013, Mr. Watt underwent an x-ray examination of
his right knee that revealed no fracture or other
abnormality. At his sick-call encounters on April 23, 2017,
June 7, 2013, January 26, 2015, and April 13, 2015, Mr. Watt
received prescription pain medication. In addition, Mr.
Watt underwent two MRIs of his right knee during the time
period in question-one on August 8, 2013, and another on
September 9, 2015. Finally, Mr. Watt underwent two surgical
procedures in attempts to relieve the pain in his right knee.
October 31, 2013, although no meniscal repair device was
available for his right knee, a spinal needle was used to
penetrate the meniscus to stimulate a healing response. In
addition, on December 16, 2015, Mr. Watt underwent a
right-knee scope and a right-knee arthroscopy to repair the
torn meniscus in his right knee.
his surgery in December 2015, Mr. Watt indicated that his
right-knee pain was "zero" on a ten-point scale.
There are no other medical records indicating that Mr. Watt
had other complaints regarding right-knee pain.
on this undisputed medical history, the Court cannot conclude
that any compelling circumstances exist to justify the
appointment of a medical expert.