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HomeMy WebLinkAbout94-6724 civilPAUL BALLOD, IN THE COURT Of COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 94-6724 CIVIL TERM : DEPARTMENT OF : CORRECTIONS, : Defendant : CIVIL ACTION -LAW IN RE: PLAINTIFF'S MOTION FOR APPOINTMENT OF BOTH COUNSEL AND AN EXPERT AND MOTION FOR A CONTINUANCE BEFORE HOFFER, P.J. AND HESS, J. ORDER OF THE COURT AND NOW, June~, 1998, after careful consideration, Plaintiff's Motion for Appointment of Counsel is denied. Plaintiff's Motion for Appointment of an Expert is also denied. Furthermore, Plaintiff's Motion for a Continuance is denied. By the Court, ~ p.j, Paul Ballod Pm Se PAUL BALLOD, : IN THE COURT Of COMMON PlEaS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 94-6724 CIVIL TERM : DEPARTMENT OF : CORRECTIONS, Defendant CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION FOR APPOINTMENT OF BOTH COUNSEL AND AN EXPERT AND MOTION FOR A CONTINUANCE BEFORE HOFFER, P.J. AND HESS, J. OPINION OF THE COURT HOFFER, P.J.: In this opinion, we address Plaintiff's Motion for appointment of both counsel and an expert and Plaintiff's Motion for a Continuance. The procedural history is as follows: Plaintiff is a state prisoner who has brought suit against various parties for alleged negligent medical malpractice and related violations of his constitutional rights. Plaintiff claimed that he had developed stretch marks in connection with a psoriasis condition while under the care of various doctors employed by the state (hereinafter "Defendant Doctors"). Plaintiff also brought a claim against the Department of Corrections alleging that the Department is responsible for his medical care. In 1996, sanctions were imposed against the Plaintiff, pursuant to Rule 94-6724 CIVIL TERM 4003.5 of the Pennsylvania Rules of Civil Procedure. These sanctions precluded Plaintiff from presenting expert testimony against the Defendant Doctors. Upon imposition of the sanctions, the Defendant Doctors motioned for Summary Judgment which was granted based upon two factors. First, because Plaintiff was precluded from presenting expert testimony, he could not establish his claim of negligent malpractice against the Defendant Doctors. Second, Plaintiff's constitutional claims were inseparable from his medical malpractice claims. Since Plaintiff's negligent malpractice claims could not rise to the level of an eighth or fourteenth amendment violation of an inmate's rights, Plaintiff could not establish his constitutional claim against the Defendant Doctors. Now, Plaintiff has motioned for this court to appoint counsel and an expert for his civil case.1 Based on the following reasons, we now deny Plaintiff's motion. According to the law of Pennsylvania, in a civil case, no right to counsel exists. Commw. v. Stock, 679 A.2d 760, 545 Pa. 13 (1996). In Johnson v. Desmond, a prisoner brought suit claiming that his constitutional rights had been violated due to a practical joke played upon him by two prison wardens. Johnson v. Desmond, 658 A.2d 375, 411 Pa. Super. 632 (1995). The superior court stated ~ Plaintiff has also motioned for a grant of continuance. His reasoning for this continuance is to allow counsel an opportunity to study his case. Because this Court is denying Plaintiff's motion for appointment of counsel and an expert, there is no reason to permit a grant of continuance in this case. 2 94-6724 CIVIL TERM that although federal courts have occasionally appointed counsel for meritorious civil rights claims under 28 U.S.C. Section 1915(e)(1), this statute has no applicability to state courts. The court went on to state there is no authority in the Commonwealth for appointment of counsel to represent parties in civil actions. Id. In the case at bar, Plaintiff has brought a civil case based upon negligent medical malpractice and a violation of his constitutional rights. Based upon the above stated precedent, Plaintiff has no right to counsel for his civil case. Additionally, Plaintiff makes the argument that the federal statute allowing appointment of counsel in civil cases applies in his case due to the supremacy clause. As stated above, 28 U.S.C. Section 1915(e)(1) has no applicability in the state of Pennsylvania for civil cases. For these reasons, we deny Plaintiff's request for appointment of counsel. Plaintiff has also motioned for the Court to appoint an expert. Plaintiff bases this request on Federal Rule of Evidence 706 which states that a court may appoint an expert witness. We now deny Plaintiff's request for an expert witness based upon the case of Ballod v. Dept. of Corrections, 676 A.2d 1333, Pa. Commw. (1996). In this case, which began in 1993, Plaintiff brought a complaint against the Department of Corrections and Angelo Anthony Anzalone, M.D. for their treatment of Plaintiff's psoriasis. The Honorable Kevin A. Hess 3 94-6724 CIVIL TERM granted Defendant Anzalone's Motion for Summary Judgment. In this motion, Judge Hess stated denied Plaintiff's request for the appointment of an expert witness. Ballod v. Dept. of Corrections, No. 1461 Civil 1993. The Commonwealth Court of Pennsylvania approved of Judge Hess's denial and we now use this reasoning to once again deny Plaintiff's request for an expert. In Ballod, Judge Hess noted that although defendants have a right to court appointed experts in criminal cases under limited circumstances, there is no support for this law in the civil realm. Plaintiff made the argument in this earlier case, as he does in the present case, that Federal Rule of Evidence 706 supports his claim. However, we, along with Judge Hess, agree that this rule has no implication on Plaintiff's case. The purpose of this rule is to help both the judge and the jury when both parties present separate expert testimony. Rule 706 allows the court to bring in a neutral expert to help clarify issues for the judge and jury. Judge Hess stated "it is appropriate to limit our power of appointment to those instances where the court deems appointment necessary for its own benefit. Thus, exercise of the appointment power is unwarranted in the instant matter because, here, the plaintiff requires a medical expert, not the court." Ballod, No. 1461 Civil 1993. We agree with Judge Hess that it is Paul Ballod who is in need of an expert, not this Court. For these reasons, we deny Plaintiff's Motion to Appoint an Expert.