A judge denied a Colorado inmate’s request to appoint an expert to testify about prison officials’ delay in giving him medical care. He then lost his lawsuit for failing to prove his medical claims.

Now, the federal appeals court based in Denver has found no fault with that decision, even as it acknowledged the seeming unfairness to plaintiff Robert J.W. McCleland.

“The outcome is understandably upsetting, but we see no incongruity,” wrote Judge Carolyn B. McHugh for the U.S. Court of Appeals for the 10th Circuit on Thursday.

McCleland entered the Colorado Department of Corrections with hepatitis C, which can cause liver cancer or failure in a minority of people with the condition. Beginning in mid-2016, McCleland complained to multiple medical personnel at Buena Vista Correctional Complex about pain and other symptoms, and he requested antiviral therapy.

Nurses at the prison denied access to the therapy based on McCleland’s scores on a blood test, which were below the threshold required to qualify. In 2018, the Department of Corrections lowered the threshold to a level where McCleland could receive the therapy, and as of January 2019 he was free of hepatitis C.

However, McCleland had already filed a federal lawsuit accusing medical staff of being deliberately indifferent to his medical needs in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. He submitted a motion asking the district court to appoint an expert witness to testify about the standard of medical care for a hepatitis C infection, and whether the medical officials deviated from it in McCleland’s case and caused him kidney damage.

U.S. Magistrate Judge Nina Y. Wang denied the request, telling McCleland the purpose of an expert witness was to help the court understand the facts, not to make a case for him.

“While he may be correct that his claims depend on further expert testimony, this alone does not render the issues too complex for the court’s comprehension,” Wang wrote.

She also denied McCleland’s motions to appoint legal counsel for him. McCleland complained that this put him at a disadvantage.

The defendants’ expert “will undoubtedly say that their actions were justified and Mr. McCleland will be left reading passages from medical texts,” he wrote. McCleland ended up authoring his own response to the department’s chief medical officer, who was the expert witness for the defendants and who concluded that employees were “reasonable and prudent in the treatment.”

Wang declined to consider McCleland’s statements because he was not a medical expert. She noted that he “fails to offer any witness competent to interpret his medical records or the scientific literature,” without mentioning she had previously denied his motion to appoint an expert.

On the case itself, Wang decided McCleland had not proven he suffered substantial harm from any delay in receiving treatment, nor had the officials disregarded a risk of harm to him. Once again, McCleland raised an objection about his lack of an expert witness, but U.S. District Court Chief Judge Philip A. Brimmer adopted Wang’s reasoning and reiterated the case was not complex enough to warrant a medical professional. He ruled in favor of the prison officials.

McCleland appealed, and a three-judge panel for the 10th Circuit concluded that even if his case would have succeeded had the court authorized an expert witness, Wang was within her power to deny him one under existing legal rules. Specifically, the 10th Circuit noted that McCleland could not afford an expert, meaning the cost would fall, paradoxically, on the defendants.

“We assume the district court could use that rule to solicit an independent second opinion in a case like this,” McHugh wrote for the panel, “but we hold it was not an abuse of discretion to decline to do so.” She added that McCleland appeared to be “intelligent and resourceful enough” to proceed without a lawyer or expert.

The case is McCleland v. Raemisch et al.