United States District Court, D. Colorado
ANDREW L. JOHNSON, Plaintiff,
TIMOTHY J. KELLISON, CHRISTOPHER REISS, and EUGENE MARTINEZ, Defendants.
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Plaintiff's [Motion
for] Appointment of Expert Witness
[#62] (the “Motion”). Defendants
filed a Response [#68] in opposition to the Motion.
Plaintiff, who proceeds as a pro se litigant,  did not file a
short, the incident underlying Plaintiff's claims
occurred on October 20, 2017, while Plaintiff was a pretrial
detainee at the Boulder County Jail. Plaintiff had been
arrested the day before and while attempting to call his
attorney on October 20, he asserts that Defendant Timothy
Kellison used excessive force against him, ultimately placing
him in a restraint chair for an extended period of time.
Based on this incident, Plaintiff brings claims for
violations of his First Amendment right to access the courts
and Fourteenth Amendment rights to due process and to be free
from excessive force.
Plaintiff requests the Court to appoint and pay for an expert
in deep vein thrombosis as an expert witness in this matter.
Motion [#62] at 1. Plaintiff states:
In this case Mr. Johnson feels very strongly that an expert
in deep vein thrombosis will help the trier of fact with
scientific issues related to the risk/causes of developing
deep vein thrombosis in healthy individuals from prolonged
sitting in excess of two hours, without stretching and by
having the circulation slowed through the use of restraints
& not releasing them to allow movement & stretch to
encourage blood flow to the limbs & explain the pain this
causes, explain the signs & symptoms of the development
of deep vein thrombosis & how or why this is a life
threatening illness & how it can cause a pulmonari embuli
[sic], & whether Mr. Johnson was or wasn't placed at
risk of developing deep vein thrombosis from defendants'
actions. The risk of developing blood clots or deep vein
thrombosis is part of Mr. Johnson's claim.
Id. at 1-2. Defendants respond:
While Plaintiff states that the risk of developing blood
clots or deep vein thrombosis is part of his claim, the
Complaint alleges only that he was put “at risk for
blood clots.” The Complaint does not contain
allegations that Plaintiff developed deep vein thrombosis or
blood clots or suffered any complications of this type
whatsoever because of [Defendants'] conduct. [Defendants]
object to the appointment of an expert to testify regarding a
medical condition that Plaintiff did not have. Moreover,
[Defendants] will be filing for summary judgment. At the very
least, it is premature to appoint a medical expert in this
matter, and even if Plaintiff's claims survive summary
judgment, the allegations are not so complex so as to require
the appointment of a medical expert.
Response [#68] at 1-2 (internal citation omitted).
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.
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.
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.”).
as relevant here, “[w]hen appointing medical experts,
the court is to allocate payment between the parties.”
Rachel, 820 F.3d at 398 (citing Fed.R.Evid.
706(c)(2)). 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).
Plaintiff “did not identify an independent expert and
was unable to pay the district court's filing fee.”
Rachel, 820 F.3d at 398; Motion [#62];
Order Granting Leave toProceed Pursuant to 28
U.S.C. § 1915 [#4]. Thus, 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 ...