Tuesday, March 20, 2012
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 I have noted before, however, Rule 706(a) is rarely used, and courts are generally under no obligation to appoint experts. And indeed, the recent opinion of the Eleventh Circuit in Robinson v United States, 2012 WL 851623 (11th Cir. 2012), makes clear, some judges aren't even aware of the Rule.
In Robinson, William Robinson, a federal prisoner, appealed a district court's grant of summary judgment on his medical negligence claims brought pursuant to the Federal Tort Claims Act against the United States. Robinson's claims related to the treatment he received for his hernia and skin condition while incarcerated at the United States Penitentiary in Atlanta.
One of the grounds for Robinson's appeal was that the district court erred when it denied his request to appoint an expert medical witness based on a belief that it had no authority to do so. The Eleventh Circuit agreed with Robinson that the district court was mistake because "[u]nder Federal Rule of Evidence 706, a district court has the discretionary power to appoint an expert witness."
That said, the Eleventh Circuit found that the district court's mistake did not constitute reversible error. Instead,
While the district court refused to appoint an expert, it appointed counsel to assist Robinson in finding an expert. Appointed counsel found a dermatologist to conduct an independent medical examination of Robinson. After an oral report from the dermatologist, counsel decided not to submit a written report from the dermatologist. Nothing in the record suggests that the outcome would have been different had the district court appointed an expert witness, rather than appointing counsel to find an expert witness