EvidenceProf Blog

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

Thursday, January 19, 2012

No Expert: 3rd Circuit Finds No Error In Refusing To Appoint Expert Under Rule 706

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As the recent opinion of the Third Circuit in Born v. Monmouth County Correctional Inst., 2012 WL 130697 (3rd Cir. 2012), males clear, courts are under no affirmative obligation to appoint experts under Rule 706(a). But as the opinion also makes clear, some courts have done some interesting things with the Rule.

In Born,  Karen Born brought a section 1983 lawsuit alleging that Sergeant William Cornine and Corrections Officer Robert Pisano violated her rights under the Eighth Amendment to the United States Constitution. Specifically,

Born allege[d] that in March 2007, when she was a prisoner in the Monmouth County Correctional Institution (MCCI), Officer Pisano stomped on her back and that Sergeant Cornine observed this but did not intervene. She filed her complaint, pro se, on August 9, 2007, requesting $200,000 in relief that she termed "restitution."...On November 8, 2007, a pretrial order was entered in the case by Magistrate Judge Tonianne Bongiovanni, directing Born to name any expert witness she intended to call at trial by April 24, 2008.

On January 8, 2009, the parties appeared before Judge Bongiovanni for a pretrial conference and filed their joint pretrial memorandum, which did not identify any expert witnesses. It appears from the record that Born requested that an expert be appointed for her to establish that she suffers from post-traumatic stress disorder (PTSD), but that Judge Bongiovanni denied this request.

After the jury found for the defendants, Born appealed, claiming, inter alia, that the judge erred by refusing to appoint an expert pursuant to Federal Rule of Evidence 706(a). The Third Circuit disagreed, finding that the exercise of authority under Rule 706(a) is "in the discretion of district court judges, and we see no basis for saying that there was an abuse of discretion in not ordering the defendants here to pay for Born to hire an expert witness."

Before reaching this conclusion, however, the Third Circuit pointed out

that some courts have held that Rule 706 can be used to appoint an expert for an indigent civil litigant and apportion the costs of such expert to the other side. See Ledford v. Sullivan, 105 F.3d 354, 360 (7th Cir.1997); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir.1996); McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.1991), vacated and remanded on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991); Webster v. Sowders, 846 F.2d 1032, 1038–39 (6th Cir.1988); U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th Cir.1984). We, however, have never so held. Cf. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (finding no statutory authority for courts to pay expert witness fees of indigent civil litigants; not mentioning Fed.R.Evid. 706).



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