EvidenceProf Blog

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

Tuesday, August 2, 2011

Living With A Hernia: 9th Circuit Finds No Error In Failing To Appoint Expert Under Rule 706(a)

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.

As the use of the word "may" in the first sentence of Rule 706(a) makes clear, it is usually within the court's discretion to appoint or not appoint expert witness, and Sanders v. York, 2011 WL 3152814 (9th Cir. 2011), was no exception.

In York, Amando Sanders, a California prisoner, had a hernia operation performed on him by Dr. Penner. According to Sanders, after the operation, the operating doctor's "decisions not to place Sanders in a medical observation room after his surgery and not to give him new dressings resulted in him being denied pain medication, clean clothes, and showers, and being forced to sleep in his own blood, urine, and vomit." Sanders also claimed that the doctor's "decisions caused him to get a stomach infection."

Sanders alleged that these decisions amounted to deliberate indifference and thus brought a Section 1983 action against the doctor and various other defendants. The district court granted partial summary judgment to one defendant, and a jury found in favor of the remaining defendants. Sanders thereafter appealed, claiming, inter alia, that the district court erred in refusing to appoint an expert to him pursuant to Federal Rule of Evidence 706(a).

The Ninth Circuit disagreed, initially noting that 

Courts have broad discretion to appoint expert witnesses....A district court may abuse its discretion, however, by declining to appoint experts in actions that involve scientific evidence or complex issues.

Then court then held that

With regard to Sanders's allegations against Dr. Penner, the district court assumed, for the purpose of partial summary judgment, that all of Sanders's factual allegations were true. Therefore, expert testimony regarding the facts of Sanders's alleged injuries and treatment would not have given Sanders any benefit regarding his claims against Dr. Penner. With regard to the claims against [other defendants], Sanders has not demonstrated that expert testimony would have been helpful, much less important or necessary to explain complex scientific issues or evidence. Sanders needed to prove that the defendants were deliberately indifferent to his medical needs. Expert testimony about the effects of the defendants' alleged deliberate indifference was not necessary. Thus, it was within the district court's discretion to deny appointment of an expert witness.



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