United States District Court, D. Colorado
ORDER
Kristen L. Mix, United States Magistrate Judge
This
matter is before the Court on Plaintiff's Motion
for the Appointment of Expert Witness
[#71][1] (the “Motion”).[2] Defendants did
not file a response to the Motion [#71].
By way
of a brief background, on June 2, 2018, Defendants, who are
both sheriff's deputies with Adams County, attempted to
apprehend Plaintiff pursuant to an outstanding warrant.
Defendant Curtis Garth pointed a gun at Plaintiff, causing
him to flee. Defendants gave chase, and, in short, Plaintiff
claims that both officers utilized excessive force against
him when they caught up to him, including the use of tasers
and physical blows. After the struggle ended, Plaintiff was
walked to a patrol car and placed in the back seat despite
the temperature reaching ninety degrees on the day of his
arrest with no air conditioning running in the patrol car. As
a result of Defendants' actions, Plaintiff alleges that
he suffered abrasions, a concussion, dehydration, kidney
failure, a fractured jaw, and a swollen eye. In this lawsuit,
Plaintiff asserts that he was subjected to excessive force
resulting in violations of his rights under the Fourth
Amendment. See Order [#26] at 2 (construing
Plaintiff's allegations as such).
In the
present Motion, Plaintiff asks the Court to appoint and pay
for a medical expert specializing in head injuries and trauma
and a law enforcement expert specializing in police
procedures, training, and the use of force. Motion
[#71]. Pursuant to Fed.R.Evid. 706(a):
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 request 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.
Although
Fed.R.Evid. 706(a) “permits the district court to
appoint a medical expert, courts rarely exercise this
power.” Rachel v. Troutt, 820 F.3d 390, 397
(10th Cir. 2016). “Some courts treat this power as
‘the exception and not the rule,' limiting
appointment of experts to the ‘truly extraordinary
cases where the introduction of outside skills and expertise,
not possessed by the judge, will hasten the just adjudication
of a dispute without dislodging the delicate balance of the
juristic role.'” Id. at 397-398.
“While
Rule 706 provides no standard for determining when to appoint
an expert, the policy [of promoting accurate factfinding]
underlying the provision supplies some guidance.” 29
Federal Practice and Procedure, Wright & Gold, §
6304, at 465 (1997). Courts have hesitated to find any
affirmative obligation to exercise their Rule 706 power.
See, e.g., Steele v. Shah, 87 F.3d 1266, 1271 (11th
Cir. 1996); Okla. Natural Gas Co. v. Mahan & Rowsey,
Inc., 786 F.2d 1004, 1007 (10th Cir. 1986). In the
absence of “complex scientific evidence or complex
issues, ” the circuit courts have held that a district
court does not abuse its discretion in declining to appoint
an expert pursuant to Rule 706. McKinney v.
Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991); see
also Cestnik v. Fed. Bureau of Prisons, 84 Fed.Appx. 51,
53 (10th Cir. Dec.18, 2003) (“Given the relative lack
of complexity of [the] case and [Plaintiff's] failure to
submit any evidence that he was financially unable to retain
his own physician, we cannot say that the refusal to appoint
an expert constituted abuse of discretion.”).
Further,
reasonable compensation for an appointed expert is payable
“by the parties in the proportion and at the time the
court directs-and the compensation is then charged like other
costs.” Fed.R.Evid. 706(c). Courts have held that,
under Rule 706(c), a District Court can apportion costs of an
expert witness, and that this authority extends to excusing
indigent parties from paying their share of the costs.
See, e.g., Ledford v. Sullivan, 105 F.3d
354, 360-61 (7th Cir. 1997). Here, Plaintiff “was
unable to pay the district court's filing fee.”
Rachel, 820 F.3d at 398; Motion [#71] at 1;
Am. Order Granting Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 [#10]. As a result, Plaintiff proceeds in
forma pauperis in this matter.
Importantly,
the Court has no existing funds to pay for the appointment of
an expert witness in a civil case. See Patel v. United
States, 399 Fed.Appx. 355, 359 (10th Cir. 2010) (citing
28 U.S.C. § 1915(c) for the proposition that “the
in forma pauperis statute makes no provision for litigation
expenses other than the reproduction of the record and
transcripts”). As the Tenth Circuit Court of Appeals
has stated in another lawsuit initiated by a pro se prisoner
claiming, in part, medical negligence:
The plaintiffs' dilemma in being unable to proceed in
this damage suit because of the inability to pay for expert
witnesses does not differ from that of nonprisoner claimants
who face similar problems. Nonprisoners often resolve that
difficulty through contingent fee retainers with provisions
for arranging expert testimony. By seeking government funding
in this case, plaintiffs are in effect asking for better
treatment than their fellow-citizens who have not been
incarcerated but who have at least equal claims for damages.
Id. (quoting Boring v. Kozakiewicz, 833
F.2d 468, 474 (3d Cir. 1987)). Thus, neither Plaintiff nor
the Court has the ability to pay for an expert witness.
As a
result, because Plaintiff has not identified specific experts
whom he wants appointed and because neither he nor the Court
can pay for those witnesses, the Court “could appoint
an expert only by identifying one on its own and directing
the defendants to bear all of the costs.”
Rachel, 820 F.3d at 398. However, the Court has the
discretion to order one party to pay for expert testimony
requested by the opposing party only if that
expert's testimony would substantially aid the
Court. See Ledford, 105 F.3d at 361. Here,
though, the Court finds that the issues in this case are not
overly complex or scientific. See generally
Second Am. Compl. [#57]. It appears that both the Court
and a jury would be able to understand the issues presented
by Plaintiff's case without the assistance of a
court-appointed expert. See, e.g., Rachel,
820 F.3d at 398 (holding that the district court did not
abuse its discretion by refusing to appoint a medical expert
to rebut the defendants' arguments as to the alleged
adequacy of the plaintiff's medical treatment in a
deliberate indifference claim). As a result, because the
Court finds that requiring such expert testimony would not
“substantially aid” the trier of fact, the Court
cannot require Defendants to pay for expert witnesses on
Plaintiffs behalf. Accordingly, IT IS HEREBY
ORDERED that the Motion [#71] is
DENIED without prejudice. This motion may be
renewed no later than 45 days after
Defendants designate any retained expert witnesses to testify
about Plaintiffs medical conditions and/or law enforcement
training and use of force issues.
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