EvidenceProf Blog

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

Monday, December 23, 2013

In My Expert Opinion: Judge Posner Implores Court to Appoint Expert in Appeal of Wisconsin Abortion Law

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, court rarely appoint their own experts under Rule 706(a) and appellate courts rarely if ever find that district courts have to appoint their own experts. The recent opinion of the Seventh Circuit in Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 2013 WL 6698596 (7th Cir. 2013), doesn't necessarily buck that trend, but it comes awfully close.

In Van Hollen

On July 5 of this year, the Governor of Wisconsin signed into law a statute that the Wisconsin legislature had passed the previous month....[T]he statute prohibits a doctor, under threat of heavy penalties if he defies the prohibition, from performing an abortion...unless he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed....

Planned Parenthood of Wisconsin and Milwaukee Women's Medical Services...—the only entities that operate abortion clinics in Wisconsin—filed suit...challenging the constitutionality of the new statute under 42 U.S.C. § 1983, which provides a tort remedy for violations of federal law by state employees.

After the district court granted a temporary restraining order that blossomed into a preliminary injunction against enforcement of the statute, the defendants appealed to the Seventh Circuit. In his opinion in the case, Judge Posner upheld the injunction as follows:

And so the district judge's grant of the injunction must be upheld. But given the technical character of the evidence likely to figure in the trial—both evidence strictly medical and evidence statistical in character concerning the consequences both for the safety of abortions and the availability of abortion in Wisconsin-the district judge may want to reconsider appointing a neutral medical expert to testify at the trial, as authorized by Fed.R.Evid. 706(a), despite the parties' earlier objections. Given the passions that swirl about abortion rights and their limitations there is a danger that party experts will have strong biases, clouding their judgment. They will still be allowed to testify if they survive a Daubert challenge, but a court-appointed expert may help the judge to resolve the clash of the warring party experts. And the judge may be able to procure a genuine neutral expert simply by directing the party experts to confer and agree on two or three qualified neutrals among whom the judge can choose with confidence in their competence and neutrality. If either side's party experts stonewall in the negotiations for the compilation of the neutral list, the judge can take disciplinary action; we doubt that will be necessary.

Interesting. I don't think that I've ever seen a judge (1) so strongly push for a court-appointed question; or (2) call into question the likely objectivity of party experts.



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