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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2006 Decided February 9, 2007
No. 05-7010
HUMBERTO ANTONIO GAVIRIA,
APPELLANT
v.
DONALD REYNOLDS, DDS, ATTENDING SURGEON, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02350)
Eric Berger, appointed by the court, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Ian Heath Gershengorn and David W. DeBruin, appointed
by the court.
Humberto A. Gaviria, pro se, filed briefs.
James C. McKay, Jr., Senior Assistant Attorney General,
Office of Attorney General for the District of Columbia, argued
2
the cause for appellees. With him on the brief were Robert J.
Spagnoletti, Attorney General, and Todd S. Kim, Solicitor
General. Edward E. Schwab, Deputy Attorney General, entered
an appearance.
Before: GINSBURG, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: After Humberto A. Gaviria
underwent five surgeries to repair jaw problems resulting from
a 1989 altercation with the police, he filed a medical malpractice
action against nine oral surgeons (“Surgeons”) who participated
in the surgeries. Acting pro se after the withdrawal of his court-
appointed attorney, Gaviria was unable to substantiate his claims
with expert testimony as required by District of Columbia law,
and the district court granted summary judgment for the
Surgeons. On appeal, Gaviria contends through court-appointed
amicus curiae that the district court abused its discretion by
refusing to appoint replacement trial counsel after Gaviria’s
appointed counsel withdrew and that the court further erred by
refusing to appoint an expert witness pursuant to FED. R. EVID.
706.
The district court took adequate steps to assist Gaviria in the
development of his claims. Gaviria benefitted from appointed
trial counsel—who explored Gaviria’s claims with the help of an
expert before he withdrew—and appointed mediation counsel,
who worked to negotiate a settlement while helping Gaviria, as
did the district court itself, to collect discovery materials from
third parties. By the time the district court granted summary
judgment for the Surgeons, it knew that neither a recent scan of
Gaviria’s head nor anything Gaviria had presented contributed
toward his burden to show that the Surgeons caused or
3
exacerbated the injuries to his jaw. Because Gaviria’s claims
were given due consideration and because neither his pro se
brief nor Amicus’s demonstrates error by the district court, we
affirm.
I.
Gaviria was injured in 1989, when he was struck on the
right side of his face and sustained a fractured jaw during an
arrest in Boston, Massachusetts. In May 1994, while in custody
at the D.C. Jail, he began to complain about “severe headaches”
and “severe problems on [his] right jaw.” Gaviria Decl. at 1.
He was taken to the now-defunct D.C. General Hospital where
he was diagnosed with a deranged right temporomandibular
joint (“TMJ”). A group of four surgeons performed a lengthy
operation to alleviate Gaviria’s pain on May 12, 1994. This
operation failed to resolve Gaviria’s condition, and four more
surgeries were performed: another in 1994 and three more in
1998. When Gaviria’s condition still did not improve, he filed
this lawsuit on September 29, 2000, against D.C. General
Hospital1 and the Surgeons. After over a year passed, the
district court appointed counsel with Gaviria’s consent,
observing:
Defendants have been unable to resolve the matter on
threshold issues of jurisdiction. Given the nature and
complexity of the claims and the likelihood that [the
case] will need to be resolved on the merits, the Court
finds that appointment of counsel would be in the
interests of justice.
Order of Oct. 9, 2001 (citing D.D.C. CIV. R. 83.11(a)(4)(B)
1
The hospital was dismissed as a party by the district court
on jurisdictional grounds and is not a party to this appeal.
4
(amended 2001)). Patrick A. Malone, Esq., of the law firm
Stein, Mitchell & Mezines entered an appearance as appointed
counsel. Malone requested Gaviria’s medical records from the
Surgeons and forwarded the available records and films to Dr.
Jeffrey Gittleman, a dentist specializing in oral surgery
including TMJ problems, for his preliminary review. After Dr.
Gittleman reported to Malone that he “did not see anything
unusual” in the medical records of Gaviria’s first two surgeries
and that “problems like [Gaviria’s] are frequently never cured,”
Malone reported these findings in a letter to Gaviria and
withdrew from the case. The district court then granted
Gaviria’s request to proceed pro se.
In subsequent filings, Gaviria reconsidered his decision to
represent himself and sought additional court-appointed counsel.
In September 2002, the district court appointed counsel for the
limited purpose of mediation. One of the two mediation lawyers
spoke Spanish, Gaviria’s native tongue. In March 2003, Gaviria
requested that his mediation counsel be converted to permanent
counsel, but the district court refused because mediation counsel
had not consented. At the same time, the district court declined
to appoint another pro bono attorney pending the outcome of
mediation and discovery. After mediation failed and counsel
withdrew in September 2003, Gaviria renewed his request for
appointed counsel. In December 2003, the district court
“conclude[d] that a reappointment [was] not warranted” because
the court itself had assisted Gaviria in obtaining the records of
his surgeries from the government, mediation counsel also had
assisted with discovery, there was no indication that there were
remaining discovery issues, and a lawyer with whom Gaviria
had communicated had not consented to an appointment. Order
of Dec. 12, 2003.
Meanwhile, Gaviria made several requests for the district
court to appoint an independent expert witness. On each
5
occasion, the district court refused. Despite Gaviria’s professed
difficulty with the English language and lack of knowledge of
the law, the district court concluded that Gaviria’s situation and
case “d[id] not present the type of compelling circumstances to
justify the exercise of any such discretionary authority.” Order
of July 10, 2002. In further explanation, the district court
remarked that “the first appointed counsel utilized the services
of an expert, who apparently could not render an opinion in
support of plaintiff’s case,” and that “medical records of recent
tests have been produced by the Bureau of Prisons which do not
appear to support his claims.” Order of Dec. 12, 2003. The
recent tests included a noncontrast enhanced CT scan of
Gaviria’s head at the University of Texas Medical Branch
Hospital in Galveston from which Dr. Harish S. Jhaveri reported
that “[b]oth temporomandibular joints are normal.” Gaviria’s
own attempts to find an expert proved unfruitful. At a March
2004 status conference, he told the district court that he had
consulted “too many” potential experts and “they say, I’m sorry,
they feel [for] my case, but they say it’s impossible.” Discovery
closed on May 30, 2004.
On August 9, 2004, the Surgeons filed a motion for
summary judgment. In granting the motion, the district court
acknowledged that expert testimony is “an essential element” of
a prima facie case of medical malpractice under District of
Columbia law and stated:
Plaintiff has not proffered a sworn statement or any
other evidence from the doctors at the Fort Worth
facility to support his claim pertaining to causation.
Nor does he claim that they can provide expert
testimony on the applicable standard of care.
Plaintiff’s bare representations are insufficient to create
a triable issue.
6
Gaviria v. D.C. Gen. Hosp., Civ. No. 00-2350, mem. op. at 4
(D.D.C. Sept. 16, 2004). Gaviria appeals.
II.
No civil litigant is “guaranteed counsel,” Willis v. FBI, 274
F.3d 531, 532 (D.C. Cir. 2001), but district courts are authorized
by statute to “request an attorney to represent any person unable
to afford counsel,” 28 U.S.C. § 1915(e)(1). This court
concluded in Willis that Local Civil Rule 83.11(a)(4)(B) was the
appropriate metric for evaluating appointment of counsel and
that the district court’s decision would be vacated only for abuse
of discretion. 274 F.3d at 532. The Local Rule underwent a
minor amendment and renumbering in 2001 but is substantively
the same as relevant to this appeal and remains, therefore, an
appropriate framework for our review.2
2
D.D.C. CIV. R. 83.11(b)(3), as amended in 2001, now
provides:
When leave has been granted pursuant to 28 U.S.C. § 1915
for a pro se litigant to proceed in forma pauperis, the judge to
whom the case is assigned may, on application by the pro se
party or otherwise, appoint an attorney from the [Civil Pro
Bono] Panel to represent such party. The appointment should
be made taking into account:
(i) the nature and complexity of the action;
(ii) the potential merit of the pro se party’s claims;
(iii) the demonstrated inability of the pro se party to
retain counsel by other means; and
(iv) the degree to which the interests of justice will be
served by appointment of counsel, including the
7
Amicus contends that the district court erred in refusing to
reappoint counsel for Gaviria by providing “scanty reasoning”
that was “speculative and irrelevant.” Brief of Amicus Curiae
at 38. In particular, Amicus maintains that the district court
should have set forth the four factors of Local Civil Rule
83.11(b)(3) and explained how they were implicated in
Gaviria’s case. However, in light of the record of the
proceedings, the district court’s articulation sufficed to
demonstrate that it did not abuse its discretion.
After acknowledging that Rule 83.11 was controlling, the
district court concluded that a reappointment was unwarranted
because Gaviria had competently prosecuted his case with the
assistance of the district court. The district court noted that
Gaviria had contacted private counsel but that the attorney had
not entered an appearance. Further, the district court noted that
neither the response by the expert consulted by Gaviria’s first
appointed counsel (Malone) nor the recent CT scan results
supported the merits of Gaviria’s claims. Concluding that it had
worked to ensure Gaviria a “full and fair hearing on his
complaint,” the district court denied Gaviria’s request for
reappointment of counsel. Order of Dec. 12, 2003.
Despite its brevity, the district court’s discussion shows that
it considered each of the four factors of Rule 83.11(b)(3) and
does not constitute an abuse of discretion. To the contrary,
considering the factors independently, it is clear that the balance
of factors in the local rule weighs against Gaviria. While the
“nature and complexity of the action” initially favored Gaviria,
leading the district court to appoint counsel, this factor does not
weigh so much in his favor that any malpractice claim requires
a second appointment of counsel after initial counsel withdraws.
benefit the Court may derive from the assistance of
the appointed counsel.
8
The district court concluded that Gaviria had done an adequate
job prosecuting his case and that the difficulties had been
resolved with the assistance of the district court and prior
counsel. The potential merits of Gaviria’s claims favor the
Surgeons because there is no evidence that Gaviria’s claims
have merit—in the sense that he would be able to meet his
burden to show causation—and a growing body of
circumstantial evidence to suggest otherwise. Gaviria’s ability
to retain counsel by other means is probably a wash—he had
consulted other counsel who did not take his case, leaving this
court unable to distinguish between whether his case was
meritless or whether the attorney was uninterested in a pro bono
assignment. On the final factor, the “interests of justice,” the
district court noted that it “expended significant time and
resources in assuring that [Gaviria] receives a full and fair
hearing on his complaint” and that “[Gaviria] proceeded to
prosecute his case in a competent manner.” Order of Dec. 12,
2003.
While the district court has a “plain duty . . . to appoint
counsel to assist” the plaintiff “[w]hen necessary to insure that
an indigent prisoner’s allegations receive fair consideration,”
Hudson v. Hardy, 412 F.2d 1091, 1095 (D.C. Cir. 1968),
Gaviria’s claims have been fleshed out, with the assistance of
initially appointed counsel and mediation counsel; his claims
just happen to be unsupported and perhaps unsupportable. In
the end, Gaviria’s claims fail because he has not been able to
produce anything beyond his own allegations to establish that he
has jaw problems, let alone that they were caused by the
Surgeons. Absent at least a preliminary showing of a
meritorious claim, there is no basis, in light of the district court’s
reasonable conclusion that Gaviria had ably handled his case
with the assistance provided, to conclude that the district court
abused its discretion in denying Gaviria’s request for new
counsel after the district court had appointed both initial counsel
9
and mediation counsel and assisted him in obtaining discovery.
See Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997).
III.
Federal Rule of Evidence 706(a) provides:
The court may on its own motion or on the motion of
any party enter an order to show cause why expert
witnesses should not be appointed, and may request the
parties to submit nominations. The court may appoint
any expert witnesses agreed upon by the parties, and
may appoint expert witnesses of its own selection.
Our standard for reviewing the district court’s refusal to
appoint an expert under Rule 706 is a matter of first impression.
Because the rule speaks in permissive terms and requires an
individualized case-specific determination, other circuits review
such denials for abuse of discretion. See Quiet Tech. DC-8, Inc.
v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1349 n.14 (11th Cir.
2003); Walker v. Am. Home Shield Long Term Disability Plan,
180 F.3d 1065, 1071 (9th Cir. 1999); Ledford v. Sullivan, 105
F.3d 354, 358 (7th Cir. 1997). We join these circuits.
Rule 706 provides no instruction as to when an expert
should be appointed except insofar as the district court “may” do
so. As for when the district court should appoint an expert,
Professors Wright and Gold suggest that “[w]hile Rule 706
provides no standard for determining when to appoint an expert,
the policy [of promoting accurate factfinding] underlying the
provision supplies some guidance.” CHARLES ALAN WRIGHT &
VICTOR JAMES GOLD, 29 FEDERAL PRACTICE AND PROCEDURE
§ 6304, at 465 (1997). Courts have hesitated to find any
affirmative obligation to exercise the Rule 706 power. See
Quiet Tech., 326 F.3d at 1348-49; Steele v. Shah, 87 F.3d 1266,
10
1271 (11th Cir. 1996); Okla. Natural Gas Co. v. Mahan &
Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 1986); see
also WRIGHT & GOLD, supra, § 6304, at 469. While none of
these cases has involved expert testimony that forms part of a
plaintiff’s prima facie case, other courts to consider Rule 706
have required only that the district court actually exercise its
discretion and expressly articulate a reasoned explanation for its
determination. See Quiet Tech., 326 F.3d at 1348-49; Steele, 87
F.3d at 1270-71.
The district court acknowledged that expert testimony
consistent with Gaviria’s position was imperative to his case, but
it cannot follow that a court must therefore appoint an expert
under Rule 706 whenever there are allegations of medical
malpractice. Here, by relying upon an appointed attorney
specializing in medical malpractice (Malone) who had a
professional obligation (and a financial incentive) to unearth
evidence and by allowing Gaviria repeated opportunities to
come forward with substantiating evidence, the district court
was assured of receiving preliminary information about the
likely merits of Gaviria’s malpractice claims before having to
decide whether a formal appointment of an expert would be
necessary. As it turned out, the district court granted summary
judgment only after Gaviria acknowledged that he had been in
contact with many experts who had been unable or unwilling to
help, after appointed trial counsel consulted an expert who found
no likely fault with Gaviria’s first two surgeries, and after recent
medical tests by the Bureau of Prisons showed no continuing
TMJ problems.
It is difficult to understand what more Amicus would
require of the district court at this preliminary stage of the
proceedings. The district court understood that Gaviria’s claim
entailed possibly difficult medical questions and gave Gaviria
repeated opportunities to show that his claim had substance. In
11
so doing, the district court was left, after full discovery, without
even a statement from Gaviria’s current doctors that something
had gone wrong in the prior surgeries and with an unexplained
five-year period between the initial injury to Gaviria’s jaw and
his first surgery. Although Amicus protests any reliance by the
district court on its own interpretation of the medical evidence,
we find no fault in the district court’s reliance at this preliminary
stage of the proceedings on the uncontroverted physician’s
opinions that in plain terms belie the premise of Gaviria’s
complaint. Cf. Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 592-93 (1993).
While it is true that Gaviria cannot prevail under District of
Columbia law without an expert witness, see Gubbins v. Hurson,
885 A.2d 269, 280 n.5 (D.C. 2005), it is fair to say that Gaviria’s
claims fail not because of the district court’s refusal to appoint
an expert witness but because of his broader failure to adduce
any evidence that the claims have merit. The district court and
mediation counsel guided Gaviria through discovery and,
through the efforts of appointed counsel, an expert examined the
medical records from Gaviria’s first two surgeries and found
that there was likely nothing wrong, a conclusion supported by
the subsequent medical tests forwarded to the district court by
the Bureau of Prisons. Under the circumstances, the district
court did not abuse its discretion in refusing to appoint an expert
witness.
IV.
Gaviria’s pro se brief likewise presents no basis for
reversing the grant of summary judgment to the Surgeons. He
contends that the district court erroneously resolved factual
matters on summary judgment that are relevant to his
previously-unmentioned constitutional claims. The thrust of his
argument is that “[t]he facts alleged by the plaintiff are evidence
12
that the Surgeons were acting maliciously and sadistically to
cause harm.” Appellant’s Br. at 8. However, this assertion is
not enough for Gaviria to survive summary judgment on his
medical malpractice claims. See generally Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-56 (1986). To the extent that
Gaviria invokes the Constitution, he failed to include such a
claim in his complaint and he has not made allegations of
subjective indifference necessary to pursue this line of
argument. See, e.g., District of Columbia v. Air Fla., Inc., 750
F.2d 1077, 1084 & n.38 (D.C. Cir. 1984).
Accordingly, because Gaviria and Amicus fail to
demonstrate that the district court erred, much less abused its
discretion, in denying his requests for reappointment of counsel
and for an expert witness, we affirm the grant of summary
judgment.