UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John R. Griffin, Jr., Plaintiff

v. Case No. 13-cv-539-SM Opinion No.

Hillsborough County Department of Corrections, et al., Defendants

O R D E R

Pro se plaintiff, John Griffin, claims that while he was

held in the Hillsborough County House of Corrections (“HCHOC”) as

a pre-trial detainee, defendants denied him constitutionally

adequate medical treatment for a recurrent kidney stone and

persistent swelling and pain in his right knee. He also alleges

that defendants are liable for medical malpractice under state

law. And, finally, Griffin asserts that one of his treating

physicians retaliated against him by deliberately providing sub-

standard medical care, in violation of his First Amendment

rights.

Pending before the court are Griffin’s objection to the

Report and Recommendation (document no. 170), in which the

Magistrate Judge recommended that the court grant defendants’

motions for summary judgment. Also pending are Griffin’s Motion

for Federal Judicial Review of [His] Objection to Defendants’ Motions for Summary Judgment, as well as his motion for Court-

Appointed Expert Witness and his Objection to the Magistrate

Judge’s Decision denying Griffin’s request to appear as his own

medical expert.

Discussion

I. The Report and Recommendation.

Although defendants moved for summary judgment on several

grounds, the Magistrate Judge based her recommended disposition

largely on only one: the fact that Griffin failed to disclose a

medical expert witness. Griffin was long aware of his need for

an expert witness and, in fact, was granted two extensions of

time within which to make that disclosure. Moreover, the

Magistrate Judge ordered the HCHOC to assist Griffin in his

efforts to secure an expert by filing a “notice, noting whether a

printed directory, commercial yellow pages, or other similar

publication, listing the addresses of health care providers in

New Hampshire, may be available to Griffin.” Order dated

December 8, 2014 (document no. 104). HCHOC complied with that

directive. See Notice of Compliance (document no. 105).1

1 By the time the Magistrate Judge directed HCHOC to assist Griffin in securing an expert witness, he had been transferred to the Carroll County House of Corrections (due to threats he had directed against one of the defendants, a health care professional). Nevertheless, defendants confirmed that officials at that facility would provide Griffin with the requested directories, as well as phone access so he might

2 Nevertheless, Griffin failed to disclose an expert witness. And,

his challenge to the state-imposed requirement that he support

his claims with expert medical testimony proved unsuccessful, as

did his attempt to act as his own medical expert. See Order

dated March 30, 2015 (document no. 142). See also Order dated

May 20, 2015 (document no. 165).

The substance of the Magistrate Judge’s thorough and

thoughtful opinion need not be recounted. It is sufficient to

note that she recognized that each of Griffin’s claims - medical

malpractice, deliberate indifference to serious medical needs,

and retaliation (in the form of deliberately providing sub-

standard medical care) - turns upon proof that defendants were,

at least, negligent in providing his medical care. It is well-

established that, in circumstances such as those presented by

Griffin, expert medical opinion testimony is essential; without

it, his claims cannot proceed.2

Absent testimony from a medical expert, Griffin’s state law

malpractice claim is foreclosed by New Hampshire law, which

contact potential medical experts. 2 There will, of course, be circumstances in which the medical care provided is so plainly shocking or so plainly intended to unnecessarily inflict pain, as to not require expert medical opinion evidence with respect to a "deliberate indifference" constitutional tort claim, but this is not such a case.

3 provides that, “In any action for medical injury, the plaintiff

shall have the burden of proving by affirmative evidence which

must include expert testimony of a competent witness or

witnesses” three essential elements: (1) the standard of

reasonable care; (2) defendant’s breach of that standard; and (3)

proximate causation. N.H. Rev. Stat. Ann. (“RSA”) 507-E:2

(emphasis supplied). See, e.g., Smith v. HCA Health Services of

N.H.,

(N.H. 2009)(“The plaintiffs’ claims are

actions for medical injury that require expert testimony, and the

trial court properly exercised its discretion in ruling that the

plaintiffs did not proffer an expert qualified to testify as to

all of the required elements of the plaintiffs’ case. Therefore,

the plaintiffs would be unable to meet their burden of proof at

trial, and the defendant is entitled to judgment as a matter of

law.”). See also Goudreault v. Kleeman,

(2009)

(“Expert witness testimony is required to establish a prima facie

medical negligence case.”) (citing RSA 507-E:2).

Griffin’s First Amendment retaliation claim is similarly

precluded by the lack of expert medical witness testimony, since

an essential element of that claim requires proof that he

received substandard medical care. See, e.g., Boudreau v.

Englander,

at *4,

(May 24, 2010)

(“Given the lack of expert medical testimony supportive of

4 [plaintiff’s] view that the care he received was substandard, he

cannot, as a matter of law, carry his burden of proof with regard

to the second element [of his First Amendment retaliation claim].

And, even if the care [plaintiff] received could be viewed as

‘adverse,’ there is no evidence in the record to support even the

inference that defendants engaged in such conduct in order to

retaliate against [plaintiff] for having exercised his

constitutional rights.”) (citation omitted). So it is in this

case.

Finally, as to his Fourteenth Amendment deliberate

indifference claim, Griffin bears an even higher burden. As this

court has previously observed:

[I]t is well-established that [a constitutional] medical mistreatment claim cannot be premised on a theory of simple negligence or even a clear case of medical malpractice. Rather, to constitute a violation of the [Constitution], a medical care provider’s conduct must go well beyond negligence in diagnosing or treating a prisoner’s medical condition. See Estelle v. Gamble,

, 105–06 (1976). Similarly, a constitutional violation does not occur merely because a prisoner disagrees with a medical professional’s decisions regarding the proper course of medical treatment. See, e.g., Ruiz–Rosa v. Rullan,

(1st Cir. 2007) (“[S]ubstandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement as to the appropriate course of treatment are all insufficient to prove a constitutional violation.”); Watson v. Caton,

(1st Cir. 1993) (“The courts have consistently refused to create constitutional claims out of disagreements between prisoners and doctors about the proper course of a prisoner’s medical treatment, or to

5 conclude that simple medical malpractice rises to the level of cruel and unusual punishment.”).

Instead, to violate the [Constitution], the “care provided must have been so inadequate as to shock the conscience,” Feeney v. Corr. Med. Servs.,

(1st Cir. 2006) (citations and internal punctuation omitted), or it must have “constitute[d] an unnecessary and wanton infliction of pain or [been] repugnant to the conscience of mankind,” Estelle, 429 U.S. at 105–06 (citations and internal punctuation omitted).

Brown v. Englander,

, at *2-3,

(D.N.H. June 1, 2012). The medical treatment provided to Griffin

appears to have been fairly standard, and certainly was not so

obviously outrageous or malicious that a lay trier-of-fact could

reasonably conclude that it violated Griffin’s constitutionally

protected rights. Consequently, he was required to provide

expert medical testimony to support his claim. He failed to do

so and the Magistrate Judge properly recommended that the court

grant defendants’ motions for summary judgment.

II. Motion for Court-Appointed Expert.

Invoking the provisions of Rule 706 of the Federal Rules of

Evidence, Griffin moves the court to enlist the services of a

court-appointed medical expert. That motion is denied. Griffin

has failed to demonstrate that this case involves either

extraordinary or compelling circumstances sufficient to warrant

such relief. See generally Tangwell v. Robb,

at

6 *4 (E.D. Mich. Dec. 23, 2003) (observing that “a recent survey of

trial judges conducted through the Federal Judicial Center

revealed that use of court-appointed experts under Rule 706 is

relatively infrequent and that most judges ‘view the appointment

of an expert as an extraordinary activity that is appropriate

only in rare instances,’” and noting that appointment of such an

expert is typically warranted “only in compelling

circumstances.”) (citations omitted).

The Tangwell court went on to conclude that appointment of a

medical expert under Rule 706 to assist a pro se plaintiff was,

under the circumstances presented, inappropriate:

[T]he plaintiff must present testimony on the standards of legal malpractice from an expert witness to establish his prima facie case of legal malpractice against the defendants. The plaintiff’s failure to secure an expert witness, after being given repeated opportunities by the Court to find such a witness, demonstrates that the plaintiff is unable to prove his case. Moreover, the Court finds that the plaintiff’s circumstances are not so “compelling” as to require the Court to appoint an expert on the plaintiff’s behalf. Indeed, the appointment of an expert witness for the plaintiff in this case under Rule 706 would be tantamount to the Court assisting the plaintiff in proving his case against the defendants. Rule 706 was not designed to provide such relief to a litigant.

Id., at *4 (citations omitted). More recently, in a case

presenting substantially similar facts to those in this case, the

United States District Court for the District of Rhode Island

7 denied a pro se prisoner’s request for the appointment of a

medical expert under Rule 706, finding that the plaintiff failed

to demonstrate that his was one of the rare and exceptional cases

warranting such relief, and concluding that appointment of an

expert to assist plaintiff in proving his case was not

appropriate under Rule 706. Paiva v. Bansal,

(D.R.I. April 27, 2011). See also Swan v. United States,

(D. Mass. 2010). See generally Womack v. GEO Group,

Inc.,

, at *2 (D. Ariz. June 3, 2013) (collecting

cases that stand for the proposition that Rule 706 “[o]nly allows

a court to appoint a neutral expert,” and it “does not

contemplate the appointment of, and compensation for, an expert

to aid one of the parties,” but rather that “the principal

purpose of a court-appointed expert is to assist the trier of

fact, not to serve as an advocate” for one of the parties).3

As defendants point out, Griffin has had more than 18 months

to secure the services of a medical expert. The fact that he has

been unable to get suitable experts to return his calls or offer

their services, does not justify the relief he currently seeks.

See generally, Stones v. McDonald,

(D.

Del. 2014) (“Thus, a trial judge does not abuse his or her

3 Parenthetically, the court notes that the Paiva court also concluded that

“does not authorize a court to pay for an expert witness on behalf of an indigent party.”

at *2.

8 discretion in declining to appoint an independent expert if it

determines that the expert is solely to benefit a party who has

otherwise failed to gather such evidence as would suffice to

prove his claims.”) (citation and internal punctuation omitted).

Conclusion

After due consideration of the objection filed, see

(b)(1), the court herewith approves and adopts the

Report and Recommendation of Magistrate Judge Andrea K. Johnstone

dated May 28, 2015 (document no. 170). Defendants’ motions for

summary judgment (document nos. 120 and 133) are, therefore,

granted.

To the extent Griffin’s “Motion for Federal Judicial Review

of [His] Objection to Defendants’ Motions for Summary Judgment”

(document no. 164) asks the court to give appropriate

consideration to his objection, it is granted. In all other

respects, it is denied.

Griffin’s Motion for Court-Appointed Expert (document no.

168) is, for the reasons discussed, as well as those set forth in

defendants’ memorandum (document no. 171-1), denied.

9 Finally, the court has considered Griffin’s “Objection to

Magistrate’s Decision” (document no. 169). In it, Griffin takes

issue with the Magistrate Judge’s denial of his request to appear

as his own expert witness. But, he has failed to demonstrate

that any part of that order “is clearly erroneous or is contrary

to law.” Fed. R. Civ. P. 72(a). Accordingly, the relief he

seeks is denied.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

June 30, 2015

cc: John R. Griffin, Jr., pro se John A. Curran, Esq. Sarah S. Murdough, Esq.

10