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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, May 11, 2011

The Areas Of My Expertise: DRI Notes Split About Whether Indigent Party Status Should Be A Factor In Rule 706 Expert Appointment

Federal Rule of Evidence 706(a) provides that

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. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

So, should a court consider the fact that one or more of the parties is indigent in deciding whether to appoint an expert under Rule 706(a)? As the recent opinion of the United States District Court for the District of Rhode Island in Paiva v. Bansal, 2011 WL 1595425 (D.R.I. 2011), makes clear, courts are split on this issue.

In Bansal, Richard Lee Paiva, pro se, an inmate at the Adult Correctional Institutions ("ACI") in Cranston, Rhode Island, filed ant action against urging that certain ACI doctors were failing to provide him with adequate medical care. Paiva moved for appointment of an expert witness under Rule 706(a), and the court noted that "appointment of [an] expert is 'extraordinary' and 'rare' and requires 'compelling' circumstances."

So, were such circumstances present in Bansal? According to the court, the answer was "no." First, the court noted that Paiva wanted the court to appoint an expert "to testify on his behalf" and found this argument unconvincing because "the purpose of Rule 706 is to assist the factfinding of the court, not to benefit a particular party." Second, the court found that "the medical issue at the crux of Plaintiff's lawsuit—regarding Defendants' treatment of Plaintiff's back injury—[wa]s neither complex nor esoteric."  

Finally, the court found that

Plaintiff's indigent status does not alter the analysis here. Courts are split as to whether an indigent plaintiff's inability to present an expert witness should factor into the Rule 706 determination, and the First Circuit has not addressed the issue. See Swan, 738 F.Supp.2d at 206; compare Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996) (stating that one side's indigent status "could provide further reason to appoint an expert") and FPP § 6304 ("Appointment of a court expert also may be justified where the parties entirely fail to present expert testimony or only some parties present such testimony, thus depriving the trier of fact of a balanced view of the issues"), with Kerwin v. Varner, No. 03-3352, 2006 WL 3742738, at *2 (M.D.Pa. Dec. 15, 2006) ("Rule 706...allows only for the appointment of an expert to aid the Court, and not for the purpose of aiding an indigent litigant, incarcerated or not") and Applegate v. Dobrovir, Oakes & Gebhardt, 628 F.Supp. 378, 383 (D.D.C. 1985) (pro se litigant's inability to secure an expert witness case did not constitute a "compelling circumstance" warranting a court-appointed expert). However, even if Plaintiff's indigent status were considered here, Plaintiff has not described any attempts to obtain (i) an expert medical witness, (ii) testimony from his former doctors, or (ii) as suggested by other courts considering the issue, an attorney who might have connections to an expert witness. See Swan, 738 F.Supp.2d at 206 (declining to appoint expert witness and instead urging prisoner-plaintiff attempt to obtain an attorney); cf. Boring, 833 F.2d at 474 (recognizing dilemma created by ruling that § 1915 did not authorize courts to pay expert witness fees for indigent prisoners in civil cases and explaining that nonprisoners often resolve the dilemma “through contingent fee retainers with provisions for arranging expert testimony”). Plaintiff, therefore, has not shown that judicial intervention is necessary or appropriate here.

Based upon these facts, I think that the District of Rhode Island made the right decision, but what about the more general proposition? Should courts take a party's indigent status into consideration when deciding whether to appoint experts under Rule 706(a)? I think that the answer is yes. Take case A and case B. Both cases are the same in that they involve somewhat complex issues, meaning that the court would benefit from expert testimony. In case A, the plaintiff can afford an expert witness. Presumably, the plaintiff will hire the expert witness, and that witness will testify at trial. Now, should the court appoint its own expert under Rule 706(a)? If the issues are especially complex, the answer would be "yes," but if they issues were not too complex, the expert's testimony (and any testimony by the defense expert) would likely be enough for the court to forego appointing its own expert.

In case B, the plaintiff cannot afford an expert witness. So, should the court appoint its own expert witness? If the issues are complex enough to require expert testimony, I think that the answer would be yes. Otherwise, the judge is basing his decision on issues that are above his pay grade. Moreover, I don't think that it matters that a party phrases its motion as a motion for the court to appoint an expert for the party. If the court appoints an expert, it will be a neutral expert designed to assist the court and not either of the parties. It is easy to imagine the court in Bansal appointing an expert and that expert then testifying against Paiva at trial. 

-CM

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