EvidenceProf Blog

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

Friday, February 28, 2014

Is There a Doctor in the House?: 11th Circuit Remands After Lower Court's Erroneous Rule 706 Ruling

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 you can see from the language of Rule 706(a), there is nothing in the Rule's text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?

In Gillentine, Tommy James Gillentine, an Alabama prisoner, brought an action, claiming that his Hepatitis C was not being treated at all. Specifically, he alleged that, "without treatment of his hepatitis C, his condition will continue to deteriorate and will likely result in his death."

Subsequently, the district court granted the defendants' motion for summary judgment, which was preceded by

Gillentine fil[ing] a motion for appointment of an expert witness to show that Defendants' care and treatment related to his hepatitis C constituted an actionable claim of deliberate indifference. A magistrate judge denied the motion because “[u]nlike a criminal case, the court has no authority in this civil case to appoint an expert witness or to pay the expenses for the plaintiff to hire one.” 

Gillentine later appealed the district court's ruling, and the Eleventh Circuit agreed with him, finding that there was nothing in the language of Rule 706(a) limiting its scope to criminal cases. Therefore, the court "vacate[d] the judgment and remand[ed] for the district court to consider Gillentine's motion for an expert witness, exercising its discretion in accordance with Rule 706."

Just as interesting was the issue that the court did not reach. According to the court,

This Court has not yet addressed the question of “whether, or under what circumstances” a district court may apportion all of the costs of a court-appointed expert to the non-indigent parties in a lawsuit. See Young v. City of Augusta, Ga., 59 F.3d 1160, 1170 (11th Cir.1995).FN5 We decline to decide this question now and instead allow the district court to decide whether it is even necessary to reach this question.  

FN5. Other circuit courts have addressed this question. See McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.) (concluding that Rule 706 permits a district court to apportion all of the cost to one side in an appropriate case), vacated on other grounds, Helling v. McKinney, 502 U.S. 903, 112 S.Ct. 291 (1991), judgment reinstated, McKinney v. Anderson, 959 F.2d 853 (9th Cir .1992); Webster v. Sowders, 846 F.2d 1032, 1038–39 (6th Cir.1988) (concluding that the district court “has authority to apportion costs under this rule, including excusing impecunious parties from their share”); U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1057 (8th Cir.1984) (en banc) (determining that the district court has “discretionary power” to call indigent litigants' “lay and expert witnesses as the court's own witnesses and to order the government as a party to this case to advance their fees and expenses, such advance payment to be later taxed as costs”).



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