EvidenceProf Blog

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

Friday, November 11, 2011

The Prisoner: United States District Court for the District Of Idaho Refuses To Appoint Expert In Prisoner Case

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.

The word "may" is the key word in this Rule as courts are under no obligation to appoint experts except in some cases involving scientific evidence or complex issues. So, if a prisoner sues a correctional facility, claiming that its officials were deliberately indifferent to his serious medical needs, does the court need to appoint an expert under Rule 706(a)? According to the recent opinion of the United States District Court for the District of Idaho in Orr v. Valdez, 2011 WL 4239223 (D.Idaho 2011), the answer is "no."

In Valdez, the facts were as stated above, with Dennis A. Orr bringing an action against doctors and others at the Idaho Correctional Center, claiming that members of the prison medical staff were deliberately indifferent to his back, leg, and knee pain and other medical problems. After bringing the action, Orr requested that the court appoint an expert to assist him in presenting his claims. 

In response, the court initially noted that "[t]he in forma pauperis statute, 28 U.S.C. ยง 1915, does not authorize federal courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants." The court then noted that

A federal court may appoint an expert witness under Federal Rule of Evidence 706(a), with the expert's fees to be allocated among the parties "in such proportion and at such time as the court directs." Fed.R.Evid. 706(b). Under this rule, experts are properly appointed where complex scientific issues are involved, such as determining what the concentration levels of environmental tobacco smoke (ETS) are in a prison and determining the health effects of ETS on nonsmoking prisoners....However, courts have recognized that "[r]easonably construed, Rule 706 does not contemplate the appointment of, and compensation for, an expert to aid one of the parties."

Applying this logic, the court concluded that

At issue in this matter is whether prison medical staff were deliberately indifferent to Plaintiff's back, leg, and knee pain and other medical problems. The issue of deliberate indifference regarding these medical issues is not so complicated and difficult that an expert is required to present or prove the case. Moreover, the facts at issue in this matter are not scientifically complex....The Court will not appoint a Rule 706 expert witness.




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